Keep the Faith: Supreme Court says States Can Punish “Faithless Electors”

Robert Brooks Contributor
Keep the Faith: Supreme Court says States Can Punish “Faithless Electors”
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Keep the Faith: On Monday, the Supreme Court upheld state laws requiring those chosen for the Electoral College to back the popular winner in their state’s presidential race. In plain English, this ruling means that states can fine or remove “faithless electors” who refuse to cast their votes for the presidential candidate they were pledged to support. The vote was unanimous. Remember, “a faithless elector is an individual in the Electoral College who decides not to vote for their own registered party’s candidate,” according to “Faithless electors may act alone, or join with other electors with each committing to casting their votes for a particular candidate outside their party.” In 2016, a group of Democratic electors voted for moderate Republicans instead of Hillary Clinton in an unsuccessful effort to convince Republican electors to vote for somebody besides President Trump. Both Democrats and Republicans feared that if the Supreme Court did not issue a ruling on the faithless electors issue, a close election in 2020 could see just a handful of electors move to sway the result. The arguments from each side below are republished from our initial post about faithless electors in May, however, the final section is updated to include commentary from the Supreme Court’s latest ruling:

Proponents of unbinding electors from their state’s results argued that the Constitution gives them the right to vote as they choose. Michael Baca, Polly Baca, and Robert W. Nemanich were presidential electors in the 2016 election. They did not vote for their pledged candidate (Hillary Clinton), and they were at the center of the Supreme Court case. In a Washington Post opinion piece, they wrote: “We are here to say conclusively: We are not robots. We are human beings. We should be allowed the ‘vote’ the Framers of our Constitution gave us, one based on our honor and discretion.” They challenged their respective states’ punitive actions against them on the basis that the 20th Amendment of the Constitution, which allows them the discretion to make their own choice. They believe their federal rights, which are guaranteed by the Constitution, are being stifled by the laws of their states, which mandate them to vote for the pledged candidate. For what it’s worth, Micheal Baca of Colorado tried to cast his presidential ballot for Ohio Gov. John Kasich, a Republican even though Democrat Hillary Clinton won the state’s popular vote over Donald Trump.

Critics of “faithless electors” believe the Constitution leaves the selection and regulation of electors to the state. Unlike those in favor of electors being allowed to vote freely, opponents do not believe the Constitution inherently provides presidential electors with the ability to choose whomever they please. In their view, it is not unconstitutional for a state to compel an electors’ pledge. “In the absence of a constitutional restriction on states’ authority, federalism ought to carry the day,” The Editorial Board at the Wall Street Journal argued. They continue, “If there had been a consensus around Electoral College independence, it would have been protected in the Constitution.” Critics also emphasized that in their creation of the Electoral College, the framers of the Constitution did not consider political parties as they presently exist. In addition, some detractors expressed a fear of “rogue electors” attempting to undermine and subvert the results of an election.

Flag This: Justice Elena Kagan, who wrote the court’s opinion, said, “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 Samuel Alito added that if the popular vote is close, the possibility of “changing just a few votes” [in the Electoral College] would rationally “prompt the losing party … to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.” Similarly, Justice Brett Kavanaugh alluded to what he called “the chaos principle of judging, which suggests that if it’s a close call … we shouldn’t facilitate or create chaos.” It’s interesting to note that Monday’s ruling does not completely bar the possibility that there could be faithless electors in the future. The Supreme court ruled that states can require their electors to vote for the popular winner, not that they must.