Supreme Court: States Can Bind Members of The Electoral College

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July 6, 2020

The Supreme Court on Monday ruled unanimously that states can require presidential electors to support the winner of the state's popular vote, rejecting arguments that members of the Electoral College get to act as free agents.

Both red and blue states pressed the justices to resolve the issue before the November balloting and reduce the uncertainty looming over the 2020 race amid the coronavirus pandemic. A decision affirming elector independence would have added an unpredictable dynamic to an election season expected to see a surge in remote voting, delays in final tallies, and continued racial unrest. While so-called faithless electors have never swung the outcome of a presidential election, they could make a difference in a tight race.

The decision follows a spirited campaign to lobby electors to change their vote in 2016 after Donald Trump's surprise victory. One scholarly amicus brief warned that electors have been subject to increased lobbying and intimidation in recent election cycles. A Michigan elector said he faced death threats before casting his ballot for Trump, while another from Texas said he received over 200,000 emails and letters pressing him to support a different candidate. Seven electors ultimately went rogue and voted for compromise candidates during the December 2016 meeting of the Electoral College, the highest figure in decades.

More than 30 states require electors to take a pledge promising to support the winner of the state popular vote. Fifteen states enforce that pledge with a penalty, either removing the rogue elector or imposing a fine. Monday's case arose in Washington, where three Democratic electors were fined $1,000 after casting ballots for Colin Powell. The trio hoped to encourage other electors to support a compromise candidate and block Trump's ascent to the White House.

The electors challenged the fines in state court on constitutional grounds and lost. The 10th U.S. Circuit Court of Appeals came out the other way in a separate case from Colorado, and ruled that electors have the discretion to support whomever they please. The states have considerable discretion to pick electors, the court said, but their power stops there.

"Once that appointment process is concluded, the Constitution identifies no further involvement by the states in the selection of the President and Vice President," the 10th Circuit's ruling reads.

Writing for the Court, Justice Elena Kagan said the power to appoint electors gives states more power than that. The right to appoint includes power to impose conditions, like residency or fidelity to the popular vote, she wrote. Similarly, nothing in the Constitution prohibits states from punishing rogue Electoral College voters. Instead, the Constitution is "barebones" about electors, she wrote.

The states, said Kagan, may instruct "its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a nation that here, We the People rule."

History confirms that reading, Kagan added. While some of the founding generation contemplated that electors would exercise independent judgment, by 1796 members of the Electoral College were mostly selected on the basis of the candidate they pledged to support. The college itself chose between the nominees of the leading political parties, rather than weigh its own options. And in the whole history of the country, there have been fewer than 200 faithless ballots out of 23,000 electoral votes cast, she noted.

"The electors' constitutional claim has neither text nor history on its side," Kagan wrote.

The ruling contained two important qualifications. Kagan said states can't impose conditions on electors that would effectively add new qualifications for president or vice president. That means, for example, states can't bar electors from supporting a candidate who hasn't released financial records. Several blue states have tried to devise ways to force Trump to release his tax returns or be disqualified from the ballot.

Second, the Court cautioned that its decision does not bind electors to support a candidate who dies between the November general election and the Electoral College balloting in December. While the scenario may sound far-fetched, it's happened before. In 1872 President Ulysses S. Grant's main challenger, Horace Greeley, died after the general election but before electoral votes were cast.

Seven other justices joined Kagan's majority opinion. Justice Clarence Thomas handed down a separate opinion that agreed with the outcome but disagreed with the reasoning.

The case is No. 19-465 Chiafalo v. Washington.