Opinion analysis: Court upholds “faithless elector” laws

This morning the Supreme Court unanimously rejected two challenges to the constitutionality of so-called “faithless elector” laws, which penalize or remove presidential electors who fail to vote for the candidate they have pledged to support. The rulings came with just under four months remaining before the 2020 election.

The Supreme Court heard arguments in May in two different disputes involving states’ efforts to enforce their faithless elector laws during the 2016 presidential election process. One challenge arose in Washington state, where Bret Chiafalo, Levi Guerra and Esther John pledged to support the candidate who won the popular vote when they were chosen to serve as electors for the state’s Democratic Party. But although Hillary Clinton won the popular vote in Washington, the three electors wrote in votes for someone else – former general and Secretary of State Colin Powell – in the hope that their votes might prompt other electors to follow suit and eventually deprive Donald Trump of a majority in the Electoral College. The trio’s protest votes led nowhere, other than to a fine of $1,000 each. The electors argued that under the Constitution, they could cast a ballot in the Electoral College for whomever they wanted, but the Washington Supreme Court upheld the fines.

The second challenge hailed from Colorado, where Clinton also won the popular vote. Micheal Baca was removed from his position as an elector when he tried to vote for Republican John Kasich, then the governor of Ohio, instead. Two other would-be faithless electors in Colorado, Polly Baca and Robert Nemanich, eventually cast their ballots for Clinton. They took their case to federal court, where the U.S. Court of Appeals for the 10th Circuit agreed with them that Colorado’s faithless elector law violates the Constitution.

In an 18-page opinion that was joined by seven of her colleagues, Justice Elena Kagan began with a brief discussion of the Electoral College. When Americans cast their votes for a presidential candidate, Kagan reminded us, they are not actually voting for president. Instead, they are choosing members of the Electoral College, who are appointed by each state based on the outcome of the vote there and then choose the president when the Electoral College meets in December. Kagan then moved on to recount the history of presidential voting, with a discussion that included references to the TV show “Veep” and the Broadway hit “Hamilton.” “In the 20th century,” she continued, “many States enacted statutes meant” to ensure that electors voted for the proper candidate by requiring them to pledge to support the party’s winning nominee. “As of now, 32 States and the District of Columbia have such statutes on their books.” And about 60 years ago, some states – currently 15 in total – enacted laws to give their “pledge laws” some teeth by removing faithless electors from their position, “substituting an alternate whose vote the State reports instead.” Like Washington, some of those states also fine electors who break their pledge.

The Constitution, Kagan pointed out, “is barebones about electors.” It provides only that states will appoint electors, who meet and cast ballots for the president, which are then sent to Washington. “Those sparse instructions,” she continued, “took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be.” Nothing in the Constitution “expressly prohibits States from taking away presidential electors’ voting discretion as Washington does.”

With little in the Constitution itself to answer the question, Kagan then turned to history, as the Supreme Court has long done when interpreting a provision in the Constitution. And for Kagan, historical practice seemed to fill in the blanks quite nicely. “Electors,” she explained, “have only rarely exercised discretion in casting their ballots for President.” Instead, she explained, from almost the very beginning of our country’s history, states did not intend to choose electors who would be “free agents” and make their own decisions about the best candidate. Rather, she stressed, states wanted the electors to cast ballots for their party’s candidate, reflecting the will of the people.

Kagan dismissed the history supporting the electors as “one of anomalies only.” There have been only 180 “faithless” votes out of over 23,000 cast, she observed, and more than a third of those can be attributed to one election, in which the Democratic Party’s nominee died shortly after Election Day in 1872. “Putting those aside,” she concluded, “faithless votes represent just one-half of one percent of the total.”

Justice Clarence Thomas filed a separate opinion (joined in part by Justice Neil Gorsuch) in which he agreed with the rest of his colleagues that the faithless elector laws are constitutional, even if he did not agree with the majority’s reasoning. Because Thomas believes that the Constitution does not say anything about whether the states have the power to require electors to vote for the candidates they pledged to support, he would uphold the laws on the ground that any powers that the Constitution does not specifically either give to the federal government or take away from the states belong to the states.

The Supreme Court heard oral argument separately in the Colorado challenge after Justice Sonia Sotomayor recused herself from the case because of a personal relationship with one of the electors, Polly Baca. In a one-sentence, unsigned opinion issued today, the justices also reversed the ruling by the 10th Circuit and upheld Colorado’s faithless elector law “for the reasons stated in” Kagan’s opinion in the Washington case.

Today’s rulings leave the current system in place. States like Washington and Colorado that have faithless elector laws will be able to continue to enforce them. At the oral arguments in May, several justices had worried aloud about the possibility that voters could be disenfranchised, and chaos could ensue, if electors could vote for whomever they wanted – a particularly undesirable prospect in a close election. In recent weeks, election law experts have cautioned that we may not know the winner of the 2020 presidential election until after Election Day on November 3, because it will take some time for absentee ballots to be processed. But as a result of today’s decisions, there is likely to be significantly less suspense when the Electoral College meets in December to formally elect the president.

This post was originally published at Howe on the Court.