The Supreme Court heard two cases challenging laws in Washington and Colorado that require members of the Electoral College in every quadrennial presidential election to cast their ballots in favor of the winner of that state’s popular votes.
Some justices expressed concern during oral arguments on May 13 that not requiring electors to vote in accordance with the wishes of popular voters in their state could lead to political upheaval and debilitating chaos.
The hearing comes as the next presidential election approaches on Nov. 3. In the 2016 election, Republican Donald Trump won a majority of electoral votes and became president, defeating Democrat Hillary Clinton, who won more popular votes.
That event appeared to give a boost to the National Popular Vote movement, an effort to create an interstate compact compelling presidential electors to cast their ballots for the candidate who wins the popular vote nationwide. The goal of the movement is to effectively mandate the direct election of the president without having to amend the U.S. Constitution, a notoriously difficult task.
Critics say the proposal is unconstitutional and subverts the will of the Founding Fathers who opposed direct democracy, which many derided in the early days of the nation as “mobocracy.”
While some states have laws that punish so-called faithless 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 first case, Chiafalo v. Washington, 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 challenge 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.
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. 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.
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, launched 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.
Unlike the end result in the Washington state case, the 10th Circuit Court of Appeals ruled that Electoral College members are free to vote for the presidential candidate they choose and can’t be bound by the popular vote in their respective states.
Justice Sonia Sotomayor was recused in the Baca case.
The two sets of oral arguments were conducted telephonically and simultaneously broadcast to the public.
Colorado Attorney General Philip Weiser asked the court to not participate in a “treacherous experiment” that could endanger the electoral process.
“We urge this court to reject this dangerous time bomb and avoid a potential constitutional crisis,” he said.
Justice Samuel Alito told Jason Harrow, Baca’s lawyer, that not binding Electoral College members to the state popular vote could lead to “consequences [that] would be potentially chaotic.”
Alito expressed concern 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. That's just one of the consequences.”
Alito asked him if “an elector [could] be removed for bribery, absent conviction by proof beyond a reasonable doubt before the time when the electors meet to vote.”
Harrow replied, “No, we don't think so, Your Honor. And that's consistent with the treatment of every other elected official. Senators and representatives cannot be removed for a supposition of bribery, a mere whisper of it. They have to be removed for proof of it. And the same thing would be true here.”
Justice Brett Kavanaugh as well 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.”
Justice Elena Kagan suggested the court should let the states decide the matter.
“What would you say if I said that if I think that there’s silence, the best thing to do is leave it to the states and not impose any constitutional requirement on them?” she asked.