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In its opinion in Chiafalo v. Washington, the Supreme Court disposes of the actual history of elector discretion as too inconsequential to merit its serious analysis. A history of elector discretion not only includes a history of the electors who exercised discretion when casting electoral votes, it also includes a history of commentary on the role of electors as the Constitution was created and, more importantly, as Congress was attempting to amend it. The Court almost completely ignores this history. When Congress crafted the Twelfth Amendment in 1803 it recognized that “the right of choice [of president] […] devolve[s] upon” the House of Representatives from the Electoral College. Section 4 of the Twentieth Amendment twice repeats this text. As the House Committee reporting the Twentieth Amendment reported it to the full House in 1932 it acknowledged that electors are free to exercise discretion. Parts II – V of this Article, which appeared in the previous issue, reviewed the history of elector discretion from the earliest days of the republic to the end of the nineteenth century. Parts VI – VIII of this article carry the narrative forward through the twentieth century to the present day.

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Northern Illinois University Law Review

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Michael L. Rosin, A History of Elector Discretion – Part Two, 41 N. Ill. U. L. Rev. 1 (2021).

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