Supreme Court to Rule on Faithless Electors

The U.S. Supreme Court has granted certiorari in two cases that could have important impact on the functioning of the Electoral College. The issue presented in both cases, one from Colorado and one from Washington, is whether a state can, by law, require its electors to vote according to their pledges or the state’s majority vote. The issue, previously obscure, came into focus in 2016 when ten electors refused to vote in accordance with their states’ popular votes. More than half the states currently have laws purporting to bind electors to vote for the candidate to whom they are pledged, or to the candidate receiving the largest number of votes in that state.

In the Washington Supreme Court case, the court upheld Washington’s statute. In the Colorado case, the 10th Circuit Court of Appeals, in Baca v. Colorado Department of State, held the state law unconstitutional on the ground that the U.S. Constitution grants electors the freedom to vote for whomever they choose.

Like most people, I dislike the concept of faithless electors, but in my view, the 10th Circuit’s reading of the Constitution is persuasive. If the Supreme Court affirms the 10th Circuit, we can expect to see many more cases of bribery, intimidation and so on in the future.

Meanwhile, a number of states have enacted the Agreement Among the States to Elect the President by National Popular Vote, which is intended to effectively do away with the Electoral College. The Agreement will go into effect when states comprising the majority of electoral votes have subscribed to it, something that may happen in the near future. Under the Agreement, for example, if Minnesota were a signatory to the Agreement, and President Trump won the “national popular vote”–a journalistic construct, essentially, with no constitutional significance–while Minnesotans voted for Bernie Sanders, the state nevertheless would be required to instruct its electors to vote for Trump.

It has been widely speculated that in any given state, the Agreement to Elect the President by National Popular Vote will last until the first time electors cast their votes for a candidate who didn’t carry that state. But if the Agreement goes into effect, and if the Supreme Court holds that the discretion of electors cannot be restrained, many will come under pressure to vote for the candidate who carried their state, not the “national popular vote” winner.

One way or another, if the Supreme Court agrees with the 10th Circuit that electors are entitled to be faithless, we are likely to see much more post-election chaos, and a heightened potential for disputed presidential elections.

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