Supreme Court to hear 'faithless elector' cases affecting Electoral College

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Supreme Court to hear 'faithless elector' cases affecting Electoral College
By Harper Neidig - 05/13/20 06:00 AM EDT

The Supreme Court is set to hear arguments Wednesday in a pair of cases that could impose new rules on the Electoral College just months before the November election.

Justices will be weighing in on “faithless electors,” members of the Electoral College who choose not to support the presidential candidate picked by the voters in their state.

Even though Americans cast ballots for their preferred nominee in presidential elections, under the Electoral College they are essentially picking state-appointed representatives to vote for a candidate on their behalf. Each state picks an allotted number of electors who are expected to back the candidate who wins the state’s popular vote.

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https://thehill.com/regulation/court-battles/497470-supreme-court-to-hear-faithless-elector-cases-affecting-electoral

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Argument analysis: In a close case, concerns about chaos from “faithless electors”

SCOTUSblog by Amy Howe 5/13/2020

https://www.scotusblog.com/2020/05/argument-analysis-in-a-close-case-concerns-about-chaos-from-faithless-electors/

This morning the Supreme Court heard oral argument in a pair of challenges to the constitutionality of so-called “faithless elector” laws – state laws that penalize or remove a presidential elector who does not vote for the candidate he has pledged to support. Six presidential electors, who hail from Washington and Colorado, argue that the Founding Fathers didn’t want electors, who are part of the Electoral College that meets to formally elect the president after voters cast their ballots, simply to rubber-stamp the popular vote. Instead, the electors argue, the Constitution gives them the right to make their own decisions. The states say that they have the right both to appoint and to control their electors; allowing the electors to function as free agents, they contend, could lead to chaos in presidential elections. After over two hours of debate today, the justices seemed to regard the issue as a close one, but it appeared that concerns about the possibility of such chaos could tip the balance in favor of the states.

The “faithless elector” question came before the justices in two different disputes, which were argued separately. In Washington, Bret Chiafalo, Levi Guerra and Esther John served as electors for the state’s Democratic Party during the 2016 presidential election. They had pledged to vote for the candidate who won the popular vote there, Hillary Clinton, and were fined $1,000 each after they wrote in votes for former general and Secretary of State Colin Powell instead. In Colorado, state officials removed Micheal Baca from his position as an elector the Democratic Party after he tried to write in Republican John Kasich’s name instead of Clinton’s; two other Colorado electors, Polly Baca and Robert Nemanich, had wanted to vote for someone other than Clinton but ultimately cast their ballots for Clinton.

Arguing for the Washington electors, Harvard law professor Lawrence Lessig described the question before the court as “straightforward: Do the states have the power to control through law how an elector may vote?” The answer, Lessig explained, is no. Washington, Lessig continued, is asking the justices to interpret the word “elector” in the Constitution as “agent” or even “minion.” But although the Constitution gives the states the power to appoint electors, electors have discretion to vote as they wish. And the justices don’t get to decide which plan is a better one for presidential elections, Lessig emphasized; the question is what the Constitution requires.

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