Supreme Court to hear ‘faithless elector’ cases affecting Electoral College

The Supreme Court is set to hear arguments Wednesday in a pair of cases that could impose new rules on the Electoral College just months before the November election.

Justices will be weighing in on “faithless electors,” members of the Electoral College who choose not to support the presidential candidate picked by the voters in their state.

Even though Americans cast ballots for their preferred nominee in presidential elections, under the Electoral College they are essentially picking state-appointed representatives to vote for a candidate on their behalf. Each state picks an allotted number of electors who are expected to back the candidate who wins the state’s popular vote.

The pair of cases before the Supreme Court stem from 2016, when electors in Colorado and Washington cast their Electoral College votes for people other than Democratic presidential nominee Hillary Clinton, who won the popular vote in each state.

Three of Washington’s 12 electors voted for former Secretary of State Colin Powell instead of Clinton. They were each fined $1,000 under a state law that allows penalties for faithless electors.

In Colorado, which has nine electoral votes, the state removed elector Michael Baca after he cast his vote for former Ohio Gov. John Kasich (R).

In both Washington and Colorado, the electors sued to challenge the state laws allowing faithless electors to be removed or penalized, arguing the statutes are unconstitutional.

The Supreme Court is now being asked to decide, just months before another presidential election, whether electors are bound by the popular vote results in their states. How the justices answer that question could have significant consequences on Election Day.

“It’s critically important to resolve the rules of this election before the election takes place,” Lawrence Lessig, a renowned Harvard Law School professor representing the electors, told The Hill. “The worst thing imaginable would be for this question to get raised after the vote has been taken when a decision by the court would basically choose who becomes president.”

That was the case in 2000, when the Supreme Court halted a Florida recount in Bush v. Gore, allowing the tally in George W. Bush’s favor to stand. Bush won the election largely because of the decision, eking out a narrow 271-266 Electoral College victory despite losing the popular vote.

Critics of faithless electors warn that it will be a disaster if the court allows electors to vote however they want.

Adav Noti, an attorney with the Campaign Legal Center, which filed an amicus brief siding with the states, argued that if the electors win their case, it will give them immense power and little accountability.

“Because electors have not had discretion for the last 200 years, there’s really no legal framework around the electors’ exercise of their authority,” Noti told The Hill.

“For anybody who holds any position of power, there are all sorts of laws about how they can use it and the money they can take in and the gifts they can receive and how they have to disclose all of that to help make sure that everything is transparent and to prevent corruption,” he said. “We don’t have any of that for presidential electors, because no one’s ever thought of them as exercising discretion, so we didn’t really need it.”

Lessig has been an outspoken critic of the Electoral College system, which has been at odds with the popular vote in two recent presidential elections — in 2000 and 2016 — and three in the 19th century. The two cases before the Supreme Court are a key component of his broader push for the elimination of the Electoral College in favor of elections determined by popular vote.

“It’s important because we think it will make clear a fundamental design choice the Framers made about the Electoral College and help everybody focus on the question of whether this is the type of Electoral College that we want,” Lessig said.

“We certainly think that we’re right about the interpretation of the Constitution. And especially in the moment of this pandemic and the uncertainties around this election, we think preserving the human safety valve in this system is a really important thing to do,” he continued. “But we also think it’s important to ask what the Electoral College should be going forward, and this case will help that question get framed.”

Lessig predicted that he may have to spend much of his allotted time during oral arguments on Wednesday addressing the justices’ concerns about the consequences of unleashing faithless electors. He said there’s little evidence that faithless electors pose a big risk to undermining elections.

Out of a total of 23,507 Electoral College votes cast in U.S. history, 90 faithless electors have defied their state’s popular vote, according to the group FairVote. There is only one instance of an elector voting for the opponent of his party’s candidate, which came in 1796 when Samuel Miles voted for Thomas Jefferson instead of John Adams.

Thirty-two states and the District of Columbia have laws requiring electors to cast votes for their pledged candidate, but 17 of those states and D.C. have no enforcement mechanism.

If the court decides to wipe out those laws, states may have more to worry about than electors defying voters, Noti warned, saying it might even mean ballots without President Trump and former Vice President Joe Biden, the presumptive Democratic nominee.

“In a huge majority of states, electors’ names aren’t even on the ballot — you just vote for your presidential candidate,” he said. “If it turns out that the electors are the people we’re actually voting for, that’s probably all going to have to change.”

“We’re probably going to have to vote not for Biden or Trump, but for these however many people who are actually running to be electors, since they’re going to be making the decision,” Noti added. “That’s going to be a huge change in how the elections are administered in the states and yet another thing that the states are going to have to deal with on top of the huge challenges they already have with the pandemic and threats of foreign interference.”

–This report was updated on May 14 at 12:29 p.m.