Supreme Court Rules State 'Faithless Elector' Laws Constitutional

Cheryl Sanders
July 7, 2020

The Supreme Court on Monday upheld state laws requiring those chosen for the Electoral College to back the popular victor in their state's presidential race, a rebuke of a group of so-called "faithless" presidential electors in Washington and Colorado who sued after they were sanctioned for voting contrary to pledges they took before becoming electors. The vote was unanimous.

"Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State's popular vote".

Though many voters don't realize it, when Americans cast their ballots in presidential elections they are actually voting for "electors" who later case the official ballots that decide the presidential election.

"However far from flawless the current system may be, the chaos of an unbounded Electoral College would have been even worse", said Paul Smith, the center's vice president for litigation and strategy.

The Chiafalo case dealt with a Washington law that fines presidential electors who go against the popular vote in that state. They had pledged to vote for Hillary Clinton, who won the state's popular vote.

The plan failed, with only seven electors nationwide agreeing to change their votes.

Despite the ruling, not all states will choose to require electors to vote according to their pledges.

Foote said Monday's decision is a positive sign for the National Popular Vote's referendum on Colorado ballots in November, which would bind electors in a pact to elect the candidate who won the popular vote in the presidential election. "The electors rapidly settled into that non-discretionary role".

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, as well as the District of Columbia prohibit Electoral College members to support a candidate contrary to popular vote. Although Maine has no such law, the secretary of state has said it has determined a faithless elector can be removed.

The court ruled that electors are not "free-agents", as MSNBC's Pete Williams described, and must cast their votes as pledged.

The Electoral College system, however, has hardly been foolproof. The 2000 election, for instance, was decided by five electoral votes.

The U.S. Supreme Court is seen Tuesday, June 30, 2020 in 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.

In Colorado, an elector voted for former governor of Ohio John Kasich instead of Clinton. In Washington, the state Supreme Court upheld $1,000 fines against the three electors and rejected their claims.

The cases that the court considered were brought after four Electoral College members from Washington and Colorado tried to vote against their state's wishes in 2016.

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