Justices to Decide If Electoral College Members Must Stick to Their Promises

May 13, 2020 by Dan McCue
Chief Justice John Roberts. (AP Photo/Patrick Semansky, File)

WASHINGTON – The Supreme Court on Wednesday was asked to sort out rules for the Electoral College system of selecting a president, and to decide whether those rules allow “faithless” electors to vote as they please or instead gives states the power to remove them.

The two cases that occupied the court on this, the last day justices were scheduled to hear oral argument by teleconference, concern matters that extend back to the founding of the nation.

The Electoral College, as most readers of The Well News know, was established by the U.S. Constitution to address the concern of some of the founders about the wisdom of holding direct elections for president.

As originally conceived, the Constitution gave each state a number of electors equal to the combined total of its Senate membership (two for each state) and House of Representatives delegation (which varies, depending on population).

The rules have been amended twice, first by the 12th Amendment, which mandated separate ballots for president and vice president, and then by the 23rd Amendment, which provided an additional three electors to the District of Columbia.

Every state but Maine and Nebraska uses a winner-take-all system, in which the candidate who prevails in the popular vote gets all of the state’s electoral votes, regardless of the margin of victory.

The overwhelming majority of electors don’t attempt to break ranks, but occasionally faithless voters have appeared.

Though none of these individuals have changed the outcome of a presidential election, the 2016 election was noteworthy for the number of electors who wanted to vote for someone other than the winning candidate in their state — 10 — and their willingness to fight for their perceived right in court.

Most of these faithless electors were Democrats, and most of the activity was aimed at handing the presidency to someone other than Donald Trump.

The first case heard by the justices Wednesday came from Washington State, where the state’s highest court ruled last year that three faithless electors in 2016 could be fined $1,000 each for voting for Colin Powell for president, rather than Hillary Clinton, the Democratic presidential nominee who won the state’s popular vote.

The state has since changed its law to provide for the removal of electors who attempt to vote for someone other than the popular-vote winner.

The second case came from Colorado, where one elector, Michael Baca, cast his vote for former Ohio Gov. John Kasich rather than Clinton. Baca was removed as an elector as a result. He and two other electors sued.

The 11th U.S. Circuit Court of Appeals ruled in favor of the electors, holding, effectively, that an elector has a right to vote their conscience.

Earlier on, Lawrence Lessig, the Harvard Law Professor and attorney for the electors, told the justices he believes the framers of the Constitution intended electors to follow the instructions of the voters of their state — but only up to a point.

At the end of the day, Lessig said, electors have to exercise their discretion in casting a vote.

Several justices pushed back on this point, including Justice Brett Kavanaugh, who worried allowing such freedom would result in electoral chaos.

Lessig was undeterred, telling the justices that while the Constitution bestows upon states the power to appoint electors, those individuals are then allowed to cast those votes “without regulation by the state.”

If electors have any obligations, he argued, they are moral and political, rather than legal.

The attorneys for Washington and Colorado, which are among the 32 states and the District of Columbia that require presidential electors to vote for their party’s nominees if they win the statewide vote, were having none of this.

“One condition that states are clearly allowed to impose is that electors promise to support the presidential candidate preferred by the state’s voters,” Washington Solicitor General Noah Purcell said.

Further, he argued that states have long exercised their power to remove or punish faithless electors who have violated their pledges and gone back on their word.

Colorado Attorney General Philip Weiser said to upset these longstanding practices could cause a constitutional crisis.

But the justices didn’t appear inclined to accept so dire a view.

Justice Ruth Bader Ginsburg, for instance, pushed back at a claim that the public would quickly lose faith in their elections if members of the Electoral College could vote as they want.

“Faithless voting … has always been rare,” she said at one point. “So how much difference does it make?”

But perhaps the moment that will most be remembered from Wednesday’s hearing belonged to Justice Clarence Thomas, who invoked “Lord of the Rings” protagonist Frodo Baggins while questioning Michael Baca’s attorney, Jason Harrow.

“The elector who had promised to vote for the winning candidate could suddenly say, you know, I’m going to vote for Frodo Baggins. I really like Frodo Baggins. And you’re saying, under your system, you can’t do anything about that,” Thomas said, offering up the unexpected hypothetical.

“Your honor, I think there is something to be done, because that would be a vote for a nonperson. No matter how big a fan many people are of Frodo Baggins,” Harrow responded.

“I do think the important point is that the framers hashed out these competing concerns,” he added. “They understood the stakes and they said among these competing hypotheticals, electors are best placed to make the ultimate selection. That hasn’t changed.”

Later, Attorney General Weiser also made reference to the fictional hobbit.

“My friends on the other side have failed to offer any viable theory on how to address the spectacle of a bribed elector, an elector who votes for Frodo Baggins, or one who would perpetrate a bait-and-switch on the people of the state,” Weiser said.

With the close of Wednesday’s arguments, the high court had heard 10 cases by telephone over six days as a result of the coronavirus pandemic.

Audio of the arguments was broadcast live, a first for the court. The cases the justices heard had been previously postponed because of the virus. Additional previously scheduled cases have been postponed until the fall.

The justices are expected to hand down their ruling in the faithless electors case by late June.

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