Supreme Court grapples with fate of ‘faithless’ electors

Court will issue a ruling just ahead of the November presidential election

An aide opens the Electoral College ballot boxes during a joint session of Congress on Jan. 6, 2017, to tally presidential and vice presidential ballots. (Tom Williams/CQ Roll Call file photo)
An aide opens the Electoral College ballot boxes during a joint session of Congress on Jan. 6, 2017, to tally presidential and vice presidential ballots. (Tom Williams/CQ Roll Call file photo)
Posted May 13, 2020 at 2:38pm

The Supreme Court appeared reluctant Wednesday to limit the way states can implement the nation’s system for choosing a president, with several justices raising concerns about the potential for the Electoral College to turn into electoral chaos.

In remote oral arguments over the telephone in two cases, so-called faithless presidential electors in the 2016 election asked the Supreme Court to shut down laws in Colorado and Washington that penalized them for voting contrary to the popular vote results.

The Washington case was brought by three Democratic 2016 electors who faced fines for not casting electoral votes for Hillary Clinton and Tim Kaine. The Colorado case focuses on an elector who cast his ballot for John Kasich instead of Clinton.

The Supreme Court will issue a ruling in the case in the coming months, just ahead of the November presidential election. In 2016, the system came under renewed criticism when President Donald Trump won the White House despite losing the nationwide popular vote.

Attorneys for those electors pressed their argument that the Constitution allows states to set requirements for who can become an elector, but gives those electors discretion on how to vote. They argued that states can’t enforce laws that fine or otherwise punish the electors for those votes.

Justice Samuel A. Alito Jr. was the most aggressive in questioning those attorneys about what would happen after the popular election but before the electors in each state cast their ballots and sent them to Congress for the official tally.

“We are told by experts on elections that the consequences would be potentially chaotic,” Alito said.

If the apparent popular vote outcome is a small margin of victory for one candidate, there could be concerted campaigns to change that result, possibly by influencing just a few electors, Alito pointed out..

“There’s the fact that in most states, the electors are not even listed on the ballots, and therefore the voters have no way of trying to ensure that the electors who were chosen are electors who really will honor the wishes of the voter,” Alito said.

Justice Brett M. Kavanaugh also asked about the potential “chaos” of leaving electors with discretion of how to vote, as well as the possibility that would disenfranchise the state’s voters.

Washington state Solicitor General Noah Purcell, in response to a question from Chief Justice John G. Roberts Jr., said states need a way to ensure the integrity of the elections.

Giving electors discretion would mean a huge incentive for someone, “whether it be a foreign power, or just a wealthy individual,” to attempt to bribe or blackmail electors, Purcell said.

“And it’s quite easy to imagine a foreign government hacking into the computer of a few dozen electors to find embarrassing information about them and try to get them to change their votes,” Purcell told the justices.

The attorneys representing the Washington and Colorado electors said that there are risks to eliminating the discretion.

Jason Harrow, the attorney for the Colorado electors, said that if states can “undo the human check that has been baked into the system of presidential selection, there really could be a chaotic outcome.”

Electors would not be free to do what is in the best interest of the country if a presidential candidate dies between the popular vote and the vote of the electors, if a candidate has a stroke, or if there’s widely recognized fraud or bribery by the candidate.

Justice Clarence Thomas questioned whether a court ruling that said states couldn’t do anything to stop the vote of a faithless elector would also be too rigid, and used a character from “The Lord of the Rings” series to make his point.

“Because the elector who had promised to vote for the winning candidate could suddenly say, ‘You know, I’m going to vote for Frodo Baggins, and I really like Frodo Baggins,’” Thomas said. “And you’re saying under your system, you can’t do anything about that.”