SCOTUSblog by Amy Howe 5/5/2020
Voters in the United States do not directly elect the president and the vice president. Instead, the Constitution instructs the states to appoint “electors,†who vote for the president and vice president. In Washington and Colorado, along with almost all other states, the electors are appointed from the same political party as the ticket that won the statewide popular vote, and they meet in early December to cast their ballots. Next week the Supreme Court will consider whether state laws that seek to control the electors’ votes violate the Constitution. It’s a fascinating legal question, but it’s also an issue that could have a significant effect on the outcome of presidential elections in the future.
The question comes to the court in two different cases, involving two different sets of electors. The first set of electors, Peter Bret Chiafalo and two others, were three of the 12 electors for the Washington Democratic Party in the 2016 presidential election. At the time, the state’s law imposed a $1,000 fine on “faithless†electors – that is, electors who do not comply with their pledge to vote for the candidate who wins the statewide vote. The second set of electors – Micheal Baca, Polly Baca and Robert Nemanich – served as three of nine electors for the Democratic Party in Colorado, which did not impose a penalty on faithless electors but instead simply required electors to vote for the candidates who won the popular vote. All the electors were appointed to serve as presidential electors after Hillary Clinton and Tim Kaine won the popular vote in both Washington and Colorado.
Before the presidential electors actually voted, the electors in these cases went to court, asking federal judges to block the governments in their states from enforcing the “faithless elector†laws on the ground that the laws interfered with their right to vote freely. They wanted to be able to vote for someone other than the Clinton/Kaine ticket in the hope that doing so might move the fate of the election to the House of Representatives, which would eventually select someone other than Donald Trump as president. To that end, each of the faithless electors in Washington voted for Colin Powell for president and for someone other than Tim Kaine for vice president; their votes were sent to Congress and counted, but the state fined them $1,000 each for failing to vote for the nominee of their party. In Colorado, Micheal Baca was removed as an elector after he tried to vote for John Kasich, a Republican then serving as the governor of Ohio, instead of Clinton; Colorado election officials referred Baca to the state’s attorney general for possible perjury charges, but none were filed. The other Colorado electors, Polly Baca and Robert Nemanich, ultimately cast their ballots for Clinton.
https://www.scotusblog.com/2020/05/argument-preview-justices-to-weigh-constitutionality-of-faithless-elector-laws/
