Supreme Court Rules State 'Faithless Elector' Laws Constitutional

Jul 6, 2020
Originally published on October 6, 2020 9:59 am

Updated at 5:40 p.m. ET

The U.S. Supreme Court has unanimously upheld laws across the country that remove or punish rogue Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support.

The decision Monday was a loss for "faithless electors," who argued that under the Constitution they have discretion to decide which candidate to support.

Writing for the court, Justice Elena Kagan, in a decision peppered with references to the Broadway show Hamilton and the TV show Veep, said Electoral College delegates have "no ground for reversing" the statewide popular vote. That, she said, "accords with the Constitution — as well as with the trust of the Nation that here, We the People rule."

The decision was a relief to election law experts as well as Democratic and Republican party officials, who have long supported faithless elector laws such as those upheld Monday.

If the case had gone the other way, it would have been a "nightmare scenario" in which people unhappy with the general election results could "go after electors and try to threaten them or cajole them or bribe them to vote in a particular way," said Richard Hasen, an election law expert at the University of California, Irvine.

Colorado Attorney General Phil Weiser echoed those sentiments: "This was one where I did not want to contemplate what the other consequence would have looked like," he said.

Even Harvard Law School professor Lawrence Lessig, who represented the rogue electors before the Supreme Court, appeared only mildly disappointed at the loss. "We took this case initially because we just thought this needed to be resolved before it created a constitutional crisis," he said.

Thirty-two states have some sort of faithless elector law, but only 15 of those remove, penalize or simply cancel the votes of the errant electors. The 15 are Michigan, Colorado, Utah, Arizona, Indiana, Minnesota, Montana, Nebraska, Nevada, Washington, California, New Mexico, South Carolina, Oklahoma and North Carolina. Although Maine has no such law, the secretary of state has said it has determined a faithless elector can be removed.

Monday's Supreme Court decision, however, is so strong that it would seem to allow states to remove faithless electors even without a state law. Duke University School of Law professor Guy-Uriel Charles said that nonetheless, it would be prudent for states to pass laws to prevent electors from going rogue.

"States certainly would be better off by imposing some statutory basis ... for removing or sanctioning rogue electors," Charles said, adding, "But I don't see anything in this opinion that requires them to do so."

Monday's case began after the 2016 election when a handful of Electoral College delegates pledged to Democratic nominee Hillary Clinton in Colorado and Washington state voted for other individuals, such as Colin Powell or John Kasich.

As Michael Baca, the faithless elector from Colorado, put it in an NPR interview, the idea was to "reach across the aisle" to Republican electors in 2016 and try to find a candidate that some Republican delegates would be willing to support other than Donald Trump.

Baca was removed on the spot under Colorado's faithless elector law, and the Washington state delegates were fined $1,000 each. In 2019, Washington's law was amended to require that faithless electors be removed as well.

On Monday, the Supreme Court put its stamp of approval on either approach, at minimum.

Kagan's opinion noted that the original Electoral College system created by the framers of the Constitution failed to anticipate the growth of political parties. By 1796, the first contested election after George Washington's retirement, the system exploded in disarray, with two consecutive Electoral College "fiascos."

That led to passage of the 12th Amendment in 1804, "facilitating the Electoral College ... as a mechanism not for deliberation but for party line voting," Kagan wrote.

Nothing in the Constitution prevents the states from "taking away presidential electors' voting discretion," she said. For centuries, almost all electors have considered themselves bound to vote for the winner of the state popular vote. If the framers of the Constitution had a different idea, she said, they never committed it to the printed page.

Justice Clarence Thomas, joined in part by Justice Neil Gorsuch, agreed with the outcome but wrote separately to explain his different reasoning.

Rather than interpret the Constitution's sparse language about the Electoral College as authorizing states to impose conditions on electors, Thomas argued that power is reserved to the states by the 10th Amendment.

Although many Americans think that they elect the president and vice president, in fact, it is the Electoral College, an arcane intermediary mechanism dreamed up by the Founders, that formally determines who wins the election.

The system has been considered a formality because usually the winner of the popular vote also wins the Electoral College.

But twice in the past two decades, the unexpected took place: The winner of the popular vote did not become president; instead, the winner in the Electoral College prevailed. Trump, who got nearly 3 million fewer votes overall than Clinton, won the state-by-state allotment of Electoral College votes in 2016 and became president. And in 2000, George W. Bush became president, winning five more Electoral College votes than Al Gore, though Gore won roughly half a million more popular votes.

In total, the popular vote winners have failed to win the Electoral College vote on four occasions, the first two occurring during the 1800s.

But the fact that the last two occurred in just the past 20 years has provoked various suggestions for reform, including getting rid of the Electoral College altogether. With the country as polarized as it is, however, that seems unlikely, as it would require a constitutional amendment, and that in turn requires a two-thirds vote in both houses of Congress, and approval by three-quarters of the states.

Several states have signed on to a proposal to sidestep the Electoral College altogether by joining a "National Popular Vote Interstate Compact" to pledge their Electoral College votes to whichever candidate wins the national popular vote, regardless of how the candidates perform in their state. So far, the compact has the support of 15 states and the District of Columbia, making up 196 electoral votes of the 270 needed to win the White House.

That scheme, which would only go into effect once enough states have joined to tip the election, would surely be challenged in court as well.

Flawed as the Electoral College system may be, at the oral arguments in May, the justices expressed concern about tinkering with laws that bind the delegates to vote for the popular vote winner in their states.

Justice Samuel Alito observed that if the popular vote is close, the possibility of "changing just a few votes" in the Electoral College would rationally "prompt the losing party ... to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be."

Similarly, Justice Brett Kavanaugh alluded to what he called "the chaos principle of judging, which suggests that if it's a close call ... we shouldn't facilitate or create chaos."

None of those concerns surfaced explicitly in Kagan's majority opinion. She instead pointed to the text of the Constitution as well as more than 200 years of history and tradition to make her case.

"The Constitution's text and the nation's history both support allowing a state to enforce an elector's pledge to support his party's nominee — and the state voters' choice — for President," Kagan wrote.

"... The Electors' constitutional claim has neither text nor history on its side."

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MARY LOUISE KELLY, HOST:

The U.S. Supreme Court today upheld state laws that remove or punish Electoral College delegates who refuse to cast their votes for presidential candidates they were pledged to support. The decision was a loss for so-called faithless electors who argued that under the Constitution, they have voting discretion. As NPR legal affairs correspondent Nina Totenberg reports, the court's decision today was unanimous.

NINA TOTENBERG, BYLINE: Justice Elena Kagan wrote for the court declaring that there is no ground for rogue Electoral College delegates to cast their votes for anyone other than the popular vote winner in the states. In a decision with references to the Broadway show "Hamilton" and the TV show "Veep," Kagan said Electoral College delegates have, quote, "no ground for reversing" the popular vote. That, she said, accords with the Constitution, as well as with the trust of the nation that here we the people rule. The decision was a relief to election experts and both Democratic and Republican Party officials who have long supported faithless elector laws like those upheld today. Rick Hasen, a law professor at the University of California Irvine, has written extensively about election law.

RICHARD HASEN: If it would have come out the other way, there would have been the ability to go after electors and try to threaten them or cajole them or bribe them to vote in a particular way that would have been really a nightmare scenario.

TOTENBERG: Colorado Attorney General Philip Weiser echoed those sentiments.

(SOUNDBITE OF ARCHIVED RECORDING)

PHILIP WEISER: This was one that I did not want to contemplate what the other consequence would've looked like.

TOTENBERG: And Harvard law professor Lawrence Lessig, who represented the rogue electors before the Supreme Court, was only mildly disappointed at losing.

LAWRENCE LESSIG: We took this case initially because we just thought this needed to be resolved before it created a constitutional crisis.

TOTENBERG: Although most states have laws that bind Electoral College delegates to vote for the popular vote winner, only 15 states actually have enforcement laws to remove or penalize rogue electors. Today's Supreme Court decision, however, is so strong that it would seem to allow states to remove faithless electors even without a law. Duke law professor Guy-Uriel Charles says that, nonetheless, he thinks it would be prudent for states to pass laws.

GUY-URIEL CHARLES: States certainly would be better off by imposing some statutory basis for sanctioning rogue electors. But I don't see anything in this opinion that requires them to do so.

TOTENBERG: Today's case began after the 2016 election when a handful of Electoral College delegates pledged to Hillary Clinton in Colorado and Washington state voted for other individuals like Colin Powell. Their purpose was to lure Republicans into defecting from Donald Trump and thus throw the election into the House of Representatives. The Colorado delegates were removed and replaced on the spot per the state law. The Washington state delegates were each find a thousand dollars. And in 2019, the law was amended to require removal. Today, the Supreme Court put its stamp of approval on either approach at minimum.

Justice Kagan's opinion for the court noted that the Electoral College system of picking presidents failed to anticipate the growth of political parties. And by 1796, the first contested election after George Washington's retirement, the system exploded in disarray with two consecutive Electoral College fiascoes. That led to passage of the 12th Amendment in 1804, facilitating the Electoral College as a mechanism not for deliberation but for party line voting. Nothing in the Constitution, said Kagan, prevents the states from taking away presidential electors' voting discretion. For centuries, she observed, almost all electors have considered themselves bound to vote for the winner of the state popular vote. Concluded Kagan, the argument for Electoral College discretion has neither text nor history on its side.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.