Court: States can bind electors
WASHINGTON — States can require members of the Electoral College to cast their votes for the presidential candidates they had pledged to support, the Supreme Court unanimously ruled Monday, curbing the independence of electors and limiting one potential source of uncertainty in the 2020 presidential election.
Thirty-two states and the District of Columbia have laws requiring electors to vote as they had promised, but recent court decisions had come to opposite conclusions about whether electors may disregard their pledges.
The Supreme Court resolved the dispute Monday in two cases concerning electors in Washington state and Colorado by saying that states are entitled to remove or punish electors who changed their votes. In states without such penalties, electors remain free to change their votes.
“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 seven members of the court.
Election law scholars welcomed the ruling.
“The court’s decision strikes a blow for legal and political stability and sanity,” said Richard Pildes, a law professor at New York University. “Every American understands themselves to be voting for the persons running for president, not for members of the Electoral College, and it is now clear that states can enforce that understanding.”
Members of the Electoral College cast the actual votes for president four weeks after Election Day. Among the District of Columbia and the states that
have laws requiring electors to vote as they had promised, 15 of the states back up their requirements by either removing rogue electors or subjecting them to financial penalties.
Because the Constitution gives states the power to appoint electors, Kagan wrote, that power allows them to impose conditions on their appointment.
“A state can require, for example, that an elector live in the state or qualify as a regular voter during the relevant time period,” Kagan wrote. It can also, she wrote, insist that electors vote for the candidate they had promised to support. And “it can demand that the elector actually live up to his pledge, on pain of penalty,” she wrote.
Recent court decisions had come to opposite conclusions about whether electors may disregard their pledges.
Last year, the Washington state Supreme Court upheld fines of $1,000 on three Democratic electors who had cast their electoral votes in 2016 for Colin Powell rather than for Hillary Clinton.
Kagan explained the electors’ thinking.
“The three hoped they could encourage other electors — particularly those from states Donald Trump had carried — to follow their example,” she wrote. “The idea was to deprive him of a majority of electoral votes and throw the election into the House of Representatives.”
The effort failed. “Only seven electors across the nation cast faithless votes — the most in a century, but well short of the goal,” Kagan wrote. “Candidate Trump became President Trump.”
In addition to the three Democratic electors who cast their electoral votes for Powell, a fourth Democratic elector in Washington state voted for Faith Spotted Eagle, a Native American tribal leader and prominent opponent of the Keystone XL pipeline. A Democratic elector in Hawaii voted for Sen. Bernie Sanders of Vermont.
Republican electors in Texas voted for John Kasich, then the governor of Ohio, and Ron Paul, a former representative of Texas.
On election night in 2016, the electoral vote was expected to be 306 for Donald Trump and 232 for Clinton. In the end, though, it was 304-227.
The votes of only 10 “faithless electors” could have changed the outcomes in five of the previous 58 presidential elections. In the 2000 election, for instance, George W. Bush beat Al Gore by five electoral votes.
In the Washington state case, a majority in the state Supreme Court decision said the Constitution allows states to insist that electors vote for their parties’ candidates.
In dissent, Justice Steven González disagreed. “The Constitution provides the state only with the power to appoint,” he wrote, “leaving the electors with the discretion to vote their conscience.”
A few months after that ruling, the 10th U.S. Circuit Court of Appeals, in Denver, rejected its reasoning in a case involving Colorado. The federal appeals court said Colorado had been wrong to discard a vote from a Democratic elector who had wanted to cast a ballot for Kasich.
“Electors, once appointed, are free to vote as they choose,” Judge Carolyn McHugh wrote for the majority of a divided threejudge panel. “While the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote or to appoint a new elector to cast a replacement vote.”
In the U.S. Supreme Court ruling, Justice Clarence Thomas, joined in part by Justice Neil Gorsuch, agreed with the majority’s bottom line but did not adopt its reasoning. He said he would have relied on general principles of federalism to reach essentially the same result.
Over the years, members of the Electoral College have cast about 180 faithless votes for president or vice president, Kagan wrote, and Congress has accepted all of them. But she discounted those examples.
“The history going the opposite way is one of anomalies only,” she wrote, noting that there have been more than 23,000 electoral votes cast for president or vice president. “And more than a third of the faithless votes come from 1872, when the Democratic Party’s nominee (Horace Greeley) died just after Election Day. Putting those aside, faithless votes represent just one half of 1 percent of the total.”
Kagan said the possibility of a candidate’s death after Election Day raised important questions.
“We do not dismiss how much turmoil such an event could cause,” she wrote, adding that “because the situation is not before us, nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate.”