Supreme Court takes up state electors going rogue
WASHINGTON – The Supreme Court appeared extremely wary Wednesday of letting 538 electors choose the president, rather than the voters.
Calling it the “avoid-chaos principle of judging,” Associate Justice Brett Kavanaugh said allowing the members of the Electoral College to stray from the winner of their states’ popular vote could be seen as disenfranchising the nation’s voters.
“We have to look forward, and just being realistic, judges are going to worry about chaos,” Kavanaugh said.
The question before the court on its last day of live, telephonic oral arguments was simple: Must the people chosen on Election Day to cast ballots for the winner of their state’s popular vote keep their pledge? Or can they go rogue?
Justices on both sides of the ideological aisle expressed concern that the electors could be bribed, particularly by the losing party in a close election. Associate Justice Samuel Alito said that could lead to uncertainty about the real winner.
“Of course, the possibility exists. You could flip electors,” said Lawrence Lessig,
the attorney for several Washington state electors who switched their votes in 2016. He sought to assure the justices that such discretion seldom would alter elections, but they seemed unconvinced.
Associate Justice Clarence Thomas asked what would happen if an elector who had pledged to vote for a state’s winning candidate instead voted for Frodo Baggins, the fictional “Lord of the Rings” character.
Jason Harrow, the lawyer representing a wayward Colorado elector, said that would be an invalid vote for a nonperson, “no matter how big a fan people are of Frodo Baggins.”
Washington Solicitor General Noah Purcell warned that if states cannot remove or penalize wayward electors, “it would radically change how American presidential elections have always worked in our country.”
The justices usually seek to sidestep politics when they can. In this case, however, it’s not partisan, and failure to act could put the nation in a bind if a razor-thin margin in November gives electors inordinate power to upend the election.
Never before has this happened. But 10 electors were disloyal or tried to be in 2016, enough to change the results of five previous presidential elections.
Lessig and Harrow warned the justices that there are ample risks on the other side as well. If the electors who cast ballots in December cannot change their votes, they said, they could be forced to vote for someone who died, suffered a stroke or was convicted of bribery after Election Day.
The 2020 presidential election already faces unusual challenges. Many states are seeking to expand absentee voting in the face of the coronavirus pandemic, which has relegated presumptive Democratic nominee Joe Biden to a makeshift basement studio while President Donald Trump and Vice President Mike Pence are dealing with staff members who have tested positive in the White House’s own ranks.
Now come two cases from Colorado and Washington state that could determine whether presidential electors have autonomy under the Electoral College system to vote for whomever they choose – regardless of the results on Nov. 3.
Washington’s Supreme Court last year upheld $1,000 fines against three Democratic electors who cast votes in December 2016 for Colin Powell rather than Hillary Clinton, who had won the state’s popular vote. They had sought to deny Trump the presidency by convincing electors to choose a different Republican candidate.
Their ultimate goal: eliminating the Electoral College that gave the Oval Office to Trump in 2016 and to George W. Bush in 2000 though both lost the popular vote in those years.
By contrast, the U.S. Court of Appeals for the 10th Circuit, based in Denver, ruled that a rogue vote cast by a Democratic elector in Colorado for Republican John Kasich rather than Clinton deserved to be counted.
The Supreme Court decided in January to hear both appeals, lest it be forced to intervene in a potential emergency situation after Election Day should an electors’ rebellion this fall potentially affect results.
Under the Constitution, each state appoints electors to cast the electoral ballots apportioned by the popular vote.
Thirty-two states and the District of Columbia require electors to vote for their party’s candidate. Some block nonconforming ballots from being counted or replace electors who don’t toe the line. A few states provide for criminal penalties.