Can Electoral College voters be compelled to vote for the winner of state popular vote? That case is now at the Supreme Court of the United States (SCOTUS).
Related: Supreme Court to Hear Case of Faithless Electors Before Next Presidential Election
Friday, 1/17/20, SCOTUS agreed to hear the case of PETER BRET CHIAFALO, LEVI JENNET GUERRA, AND ESTHER VIRGINIA JOHN v. STATE OF WASHINGTON. This is a case about whether Electoral College electors must vote for the winner of their state’s popular vote. About half the states currently have laws requiring electors to vote for the candidate who wins the popular vote in their state.
The situation
In this case RCW 29A.56.340 (2016) threatens a fine for presidential electors who vote contrary to how the law directs. . The petitioners are three 2016 presidential electors who were fined under this provision. They were fined solely because they failed to vote as the law directs. The law requires votes to be cast namely for the presidential and vice presidential candidates who won a majority of the popular vote in the State.
The question presented in this case is whether enforcement of this law is unconstitutional because:
(1) a State has no power to legally enforce how a presidential elector casts his or her ballot; and
(2) a State penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.
This case made it to the SCOTUS because:
1. The decision of the Washington Supreme Court directly conflicts with a recent decision of the Tenth Circuit Court of Appeals.
2. The reasoning and conclusions of the Washington Supreme Court and Tenth Circuit are irreconcilable.
3. The two recent cases reflect both sides of a pre-existing split.
4. This appeal and Baca (A sister case from Colorado) are not legally distinguishable.
5. The question presented is exceptionally important and warrants review.
6. This issue is exceptionally important because its ultimate resolution would make clear the rules for the Electoral College before a contested presidential election.
7. This case is the best possible vehicle to resolve this issue.
8. The Washington State Supreme Court decision is incorrect.
Decisions: Can Electoral College Voters Be Compelled
The Washington Supreme Court’s decision and dissent: States may regulate the vote of an elector. The decision either directly or indirectly conflicts with the Tenth Circuit’s contrary decision. The Tenth Circuit issued its decision only two months later. The Tenth Circuit decision is: The Constitution gives electors discretion to vote for whomever they wish.
The issue is undeniably important: Presidential elections in the Electoral College are increasingly close. The election outcome could literally turn on whether electors have a constitutionally protected discretion or not. This case is the ideal vehicle to decide the issue because this appeal cleanly presents the question outside of a heated political contest. There is no guarantee that the next opportunity to decide this question will arise in advance of a contested presidential election.
On the merits, the Washington Supreme Court’s position that a state may interfere with electors’ votes is at odds with the plain text, structure, and original meaning of the Constitution, as well as the history of presidential Electoral College voting.
Faithless electors
Electors who do not vote for the winner of their state’s popular vote are known as “faithless electors.” According to NBC News, the so-called problem of faithless electors has never really been an actual problem before. In fact, most states simply throw out the ballot of an elector who doesn’t follow the state’s popular vote.
But in 2016, the Democrats ran such a rotten candidate that several electors in states carried by Hillary Clinton cast their ballots for someone else. One elector in Colorado voted for John Kasich. One in Hawaii voted for Bernie Sanders. Four in Washington state voted for two different people — three for Colin Powell and one for Faith Spotted Eagle, the name of a Native American activist.
Other Democratic electors contemplated voting differently but were reportedly pressured into voting for Clinton. Colorado simply replaced its errant elector with one that would vote for Hillary. Washington state fined their independent-thinking electors for violating state law. They challenged the fines in court.
The challenge
The Washington state Supreme Court ruled against the electors who challenged the fines imposed upon them. In his dissenting opinion, Justice Steven Gonzalez took issue with the court’s decision, arguing “[t]he Constitution provides the state only with the power to appoint, leaving the electors with the discretion to vote their conscience.”
The number of faithless votes was the largest in history. The phenomenon is not particularly unusual. “Congress has accepted the vote of every vote contrary to a pledge or expectation in the nation’s history that has been transmitted to it — a total of more than 150 votes across 20 different elections from 1796 to 2016,” the petition filed last week said, citing data from FairVote, a nonpartisan voting rights advocacy group.
Congress has only once debated the question, when some lawmakers objected in 1969 to counting a Republican elector’s vote for George C. Wallace after Richard M. Nixon won the popular vote in the elector’s state. Both houses rejected the objection, and the vote stood.
Constitution and precedent
States can choose their own electors and require them to pledge certain loyalties. However, once the electors form the Electoral College they are no longer serving a state function but a federal one. The 10th Circuit Court of Appeals agreed with Justice Gonzalez’s dissent, ruling that electors can vote for any legitimate candidate they choose.
“The states’ power to appoint electors does not include the power to remove them or nullify their votes,” the 10th Circuit declared. Just as Arizonans voted to send Jeff Flake to the Senate, but, once there, the voters could not nullify Flake’s votes or fine the senator for voting his conscience, as much as the voters may have wanted to.
In 1952, the U.S. Supreme Court ruled that state laws requiring electors to abide by the popular vote of the state did not violate the Constitution. The high court never ruled whether the states can enforce those pledges after the fact.
Conclusion
The lawyer for the Washington State electors, Harvard Professor Lawrence Lessig is hoping the case will focus attention on what he characterizes as shortcomings in the Electoral College when it comes to reflecting the outcome of the popular vote. He is hoping it could also convince both sides it is finally time to step up and modify the Constitution to address what he describes as an underlying problem.
The professor suggests such fixes as the National Popular Vote plan or even a constitutional amendment. Because a Democrat lost the last presidential election, surely something must be wrong with the Constitution that allowed it to happen. The case goes before the court this spring and a decision is expected by the end of June. We’re going to find out can electoral college voters be compelled by the states.
