Faithless Electors are those that refuse to cast their Electoral College vote in accordance with the popular vote of their state. The National Popular Vote wants member States to cast their state’s electors according to the national popular vote regardless of how their state voted. Did the US Supreme just put a stake in the heart of that idea?
Related: Republicans Try to Prevent the Democrats from Erasing New Hampshire from the Electoral Map
The 2016 Election is a good example—Democrat dense cities voted for Hillary. Everywhere else voted for Trump. Clinton won the popular vote but lost the Electoral College vote (because states elect presidents, not people). But if the Popular vote movement were in play, President Hillary would have collected Electors from states whose individual popular vote would have cast their electoral college votes for Trump.
“Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote,” Justice Elena Kagan wrote for the court in Chiafalo v. Washington.
The decision in CHIAFALO ET AL. v. WASHINGTON was unanimous. States can punish Electors who vote “for someone other than the presidential candidate who won his State’s popular vote.” Without getting into the weeds (and I have not read the entire decision), it looks like the Supremes just erected another hurdle in the path of the popular vote movement.
I think. While the decision recognizes state’s authority in the matter, it also says this.
And state election laws evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens. Washington’s law is only another in the same vein. It reflects a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.
If the electors are required to vote for the candidate whom the state’s voters have chosen, states may not tell their electros to vote for the candidate who won the national popular vote unless they are the same. If so, the National Popular Vote movement just died.
It also follows that if states can fine electors for refusing to vote according to the state’s popular vote, they cannot then ask them to do so as this would contradict the object of the ruling. How can you punish electors for refusing to vote according to the state’s popular vote and then tell them to ignore the state’s popular vote?
I accept that I may be reaching here. That Monday morning quarterbacking by bloggers, even when it makes perfect sense, may not apply to the legal gymnastics. But the decision at the very least lays ground upon which someone might make that case in the future.
But wait, there’s More!
In an 8-0 companion decision (Justice Sonia Sotomayor recused), the Court also ruled that Electors could be replaced if they tried to vote for someone other than the candidate who won the state’s popular vote. Replaced with someone who would vote according to the popular vote will of their individual or respective state.
So, states can fine or punish electors for voting contrary to the state’s popular vote, and ore remove and replace them for the same.
How the National Popular Vote (NPV) movement survives following these decisions is a mystery to me, but when it comes to politics, not much of what happens surprises me anymore. The fight’s not over until NPV is down and out.
CHIAFALO ET AL. v. WASHINGTON Faithless electors 19-465_i425