Supreme Court Unanimously Upholds ‘Faithless Elector’ Laws

Supreme Court Unanimously Upholds ‘Faithless Elector’ Laws
The Supreme Court in Washington on June 15, 2020. (J. Scott Applewhite/AP Photo)
Matthew Vadum

The Supreme Court unanimously affirmed the constitutionality of “faithless elector” laws that allow states to fine or remove Electoral College members who fail to vote for the presidential candidate they were pledged to support.

While some states have laws that punish such electors for not voting for the candidate to which they pledged support, there have long been legal questions about the enforceability of such laws.

The ruling in two separate appeals came July 6, as the next presidential election approaches on Nov. 3.

“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.

“We hold that a State may do so.”

About 60 years ago, states began backing up “their pledge laws with some kind of sanction. By now, 15 States have such a system,” Kagan wrote, adding that 32 states and the District of Columbia have statutes on the books requiring “party-picked electors [to] vote for their party’s winning nominee.”

“Almost all of them immediately remove a faithless elector from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge. Washington is one of the 15 States with a sanctions-backed pledge law designed to keep the State’s electors in line with its voting citizens.”

There is “nothing in the Constitution [that] expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. The Constitution is barebones about electors,” Kagan wrote.

States have long used “pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”

The Chiafalo case dealt with a Washington law that fines presidential electors who go against the popular vote in that state. The petitioners are three 2016 presidential electors who were fined because they failed to vote as the law directs.

Petitioners challenged the law, saying the state has no power to enforce how a presidential elector casts his or her ballot, and that penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment. The Washington Supreme Court upheld the fines, and the Supreme Court affirmed that decision in a 9–0 vote.

In the second case, Colorado Department of State v. Baca, Electoral College member Micheal Baca was part of a group called the “Hamilton electors,” who attempted to convince 2016 electors who were pledged to Democrat Hillary Clinton or Republican Donald Trump to come together behind an alternative candidate to prevent a Trump victory.

Almost immediately after Trump emerged as the winner early in the morning on Nov. 9, 2016, activists such as Baca, angry about the defeat of Clinton, began a campaign to try to pressure the 306 Electoral College members pledged to vote for Trump to vote for someone else when the electoral votes were to be cast. Trump ended up receiving 304 votes in the Electoral College, well over the threshold of 270 needed to win. Clinton received 227 votes in the Electoral College, after winning 232 in the election.

Although Trump won more electoral votes than Clinton, the Democrat won more popular votes.

When the electors met to vote on Dec. 19, 2016, Baca crossed out Clinton’s name on his ballot and wrote in then-Ohio Gov. John Kasich, a Republican who also ran for president in the 2016 cycle.

The state refused to accept the vote and removed Baca as an elector, replacing him with another elector who voted for Clinton.

Justice Sonia Sotomayor recused herself in the Baca case, which means the justices’ vote to uphold the state’s action was 8–0. Instead of explaining the reasoning behind the decision, the Supreme Court opinion in the case simply stated, “The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in” the Chiafalo ruling.

During telephonic oral arguments May 13, Justice Samuel Alito worried aloud that “after an election where the apparent outcome based on the popular vote is a small margin of victory for one candidate, there would be concerted campaigns to change that result by influencing a few electors, and that could be achieved by influencing just a few electors.”

Justice Brett Kavanaugh expressed concern about “chaos.” He said he tried to adhere to “the avoid-chaos principle of judging, which suggests that if it’s a close call or a tiebreaker, that we shouldn’t facilitate or create chaos.”