‘Avoid chaos’: Supreme Court wary of faithless electors
WASHINGTON – The Supreme Court appeared wary Wednesday of letting 538 electors choose the president without restrictions, rather than the voters.
Calling it the “avoid-chaos principle of judging,” Associate Justice Brett Kavanaugh said allowing members of the Electoral College to stray from the winner of their states’ popular vote in all 50 states 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, as 32 states require? Or can they go rogue, as 18 states allow?
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.
The justices also expressed concern, however, about the limits of state powers to force electors’ hands. If the electors who cast ballots in December cannot change their votes, Lessig and Jason Harrow, the lawyer for Colorado electors, said, they could be forced to elect someone who died, suffered a stroke or was convicted of bribery after Election Day.
“That rigidity has no place in our constitutional universe,” Harrow said.
A vote for Frodo Baggins?
Virtually all the justices expressed concerns that rogue electors could vote however they pleased. 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 Froddo Baggins, the fictional Lord of the Rings character.
Harrow said that would be an invalid vote for a nonperson, “no matter how big a fan many people are of Froddo Baggins.”
Chief Justice John Roberts worried about giving electors so much leeway that they could flip a coin, as long as they chose a person and “not a giraffe.”
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, but in the presidential electors case, the controversy is 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.
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 are positive in the White House’s own ranks.
Two states, different rulings
Washington’s Supreme Court last year upheld $1,000 fines against three Democratic electors who cast votes in 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 year potentially affect results.
Washington’s Supreme Court ruled that the state was within its rights to issue the first-ever fines for so-called faithless electors.
The 10th Circuit set a different precedent in the Colorado case: “The states may not interfere with the electors’ exercise of discretion in voting for president and vice president by removing the elector and nullifying his vote.”