High court to take up matter of electoral college members who ignore popular vote

States’ ability to punish those electors who freelance is at issue.

The Supreme Court on Friday said it will consider whether states may punish or replace “faithless” presidential electors who refuse to support the winner of their state’s popular vote, or whether the Constitution forbids dictating how such officials cast their ballots.

What’s at stake

Lower courts have split on the question, and both red and blue states urged the justices to settle the matter in advance of the “white hot” glare of the 2020 election. They say they fear a handful of independent-minded members of the electoral college deciding the next president.

“It is possible that a presidential election could turn on just a few disputed electoral votes cast in purported violation of state law,” said a petition filed by three electors who faced fines from the state of Washington for not supporting Hillary Clinton, the winner of that state’s popular vote in 2016. “It is not entirely clear how that would play out — but there is a very real risk of substantial unrest, or worse, if that does happen.”

Ten members of the electoral college attempted to freelance after the 2016 election between Clinton and President Donald Trump. Five of the 58 presidential elections have been decided by smaller margins, most recently in 2000, when President George W. Bush defeated Democrat Al Gore by five electoral votes.

Fear of electors going their own way

A brief filed on behalf of the states said 32 states and the District of Columbia require electors to vote for the winner of the statewide vote, and asked the Supreme Court to make clear there is no constitutional prohibition on such laws. Anything else, the state of Washington told the Supreme Court in its brief, “would mean that only 538 Americans — members of the Electoral College — have a say in who should be president; everything else is simply advisory.”

The motive of those challenging the laws, the states said, “is to destroy public faith in the Electoral College so that the people decide to do away with it.”

Challengers say the Constitution leaves up to states the appointment of electors, but that is all.

The legal path to Supreme Court

The court was considering the Washington case (Chiafalo v. State of Washington), as well as one from Colorado (Colorado Department of State v. Baca).

In the summer of 2016, Peter Bret Chiafalo, Levi Jennet Guerra and Esther Virginia John were nominated as presidential electors for the Washington Democratic Party. They ran pledging to vote for the party’s nominee. But when the electoral college convened after the election, all three voted for former Secretary of State Colin Powell for president, and split their votes for vice president. Congress counted their votes. But Chiafalo, Guerra and John were in violation of Washington law, which requires electors to support the nominee of their party or face a civil fine of up to $1,000.

The trio challenged the law and lost at the Washington Supreme Court. The majority found “the Constitution explicitly confers broad authority on the states to dictate the manner and mode of appointing presidential electors.” Additionally, nothing in the document “suggests that electors have discretion to cast their votes without limitation or restriction by the state legislature.”