Updated at 11:59 a.m.
The U.S. Supreme Court on Monday upheld state laws that remove or fine Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support. The vote was unanimous.
“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,” Justice Elena Kagan wrote for the court. Laws that remove or penalize delegates reflect “a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.”
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 vote.
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. Thus, Donald Trump, who got nearly 3 million fewer votes overall than Hillary 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.
Monday’s decision brought a sigh of relief from election experts, who worried that if Electoral College delegates were free to vote as they chose, the 2020 election would have turned into a free-for-all, with no rules to prevent corruption and manipulation, with delegates offered gifts and even cash for their votes, and blackmail also a possibility.
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.”
Thirty-two states have some sort 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.
While some of the writers of the Constitution originally conceived of the Electoral College as a deliberative body of delegates with discretion as to who they would vote for, as Justice Kagan observed on Monday, that language never made it into the Constitution, and that notion quickly evaporated as political parties began to emerge; by 1796 the selected electors were pledged to cast their ballots for the winner of the popular vote.
The Electoral College system, however, has hardly been foolproof. In all, there have been four times in U.S. history that the winner of the popular vote lost in the Electoral College. The first two were in 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, though, none of the suggestions requiring a constitutional amendment have any traction.
The one thing the two major political parties agree on is their desire to hold the delegates to their pledges. And both parties supported the state laws at issue before the Supreme Court, one from Colorado and the other from Washington.
Challenging those laws were a handful of 2016 Democratic delegates pledged to support Clinton, among them Michael Baca in Colorado and Bret Chiafalo in Washington.
As Baca 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 Trump. To that end, Chiafalo and two other Democratic delegates in Washington voted for Colin Powell, while Baca tried to vote for then-Ohio Gov. John Kasich.
Baca was removed on the spot under Colorado’s “faithless elector” law, and the Washington delegates were fined $1,000 each.
The question before the Supreme Court was whether the states have the power to remove, fine or, for that matter in a couple of other states, imprison electors who do not vote for the presidential and vice presidential candidates they are pledged to support.
Baca and Chiafalo, represented by Harvard Law professor Lawrence Lessig, told the justices that they are not “faithless” at all. Rather, they maintained that they were simply doing what the Founding Fathers envisioned, exercising their independent judgment and their consciences.