Justices rule states may curb ‘faithless 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 a pair of 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 H. 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 states and the District of Columbia that have laws requiring electors to vote as they had promised, 15 states back up their requirements by either removing rogue electors or subjecting them to financial penalties.

Since 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 in Washington state who cast their electoral votes for Powell, a fourth Democratic elector in the 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.