Election Coverage / Politics

Supreme Court’s ‘Faithless Electors’ Decision Safeguards Electoral College

In a decision issued Monday, the Supreme Court ruled that states can punish presidential electors who break their pledge to support the presidential candidate preferred by the citizens of their states.

The ruling affirms the Electoral College as an important part of our constitutional structure—one that balances popular sovereignty with the benefits of a federal system in which state governments play a vital role.

Every four years, Americans cast votes for their preferred presidential candidate. But what voters in 48 states are actually selecting is a slate of electors who have pledged to vote, as members of the Electoral College, for the candidate who wins a majority of their state’s popular vote. (Maine and Nebraska employ a slightly more complex allocation system based on the winner of the popular vote and congressional districts).

While we all vote in November, the electors meet in state capitols in December to cast their votes.

The number of Electoral College votes to which each state is entitled is the total of their two U.S. senators and the number of members they have in the House of Representatives. This arrangement balances the interests of the larger states with larger populations and the smaller, often more rural states with smaller populations so that presidential candidates won’t ignore those smaller states and campaign only in the large, urban population centers.

But what happens when one of those electors defects?

Say, for example, an elector pledged to vote for candidate A (who wins the state vote), breaks her promise and instead votes for candidate B—or possibly some other person who wasn’t even on the ballot. Can the state remove that “faithless elector”? Can it punish or at least fine the faithless elector?

The Supreme Court confronted those questions and answered “yes” to both.

These questions were not hypothetical. In 2016, three electors from the state of Washington pledged to vote for Democratic presidential candidate Hillary Clinton. Hoping to throw the election into the House of Representatives (which happens if no candidate receives a majority of Electoral College votes—currently 270), the three cast their votes for Colin Powell—even though Clinton carried the state. Washington fined them $1,000 each, in accordance with state law.

The faithless electors sued in state court arguing the fines violated the Constitution and their right to exercise a different choice in casting their vote, but the Washington Supreme Court upheld the law and the fines.

Similarly, in Colorado, three electors pledged to cast their Electoral College votes for Clinton in 2016 and announced they would instead cast their votes for former Ohio Gov. John Kasich.

Only one actually did so, because after he voted for Kasich, the Colorado secretary of state immediately removed him from his position, cancelled his vote, and replaced him with a different elector who voted for Clinton. The other two electors saw this and begrudgingly cast their votes for Clinton, too, despite their expressed desire to vote for Kasich.

All three electors sued in federal court, and the 10th U.S. Circuit Court found that Colorado had violated the Constitution by removing the elector who had actually voted for Kasich and nullifying his vote.

These “faithless” electoral votes in Washington and Colorado were both part of a concerted effort in 2016 to convince electors to break their pledges in order to throw the election into the House of Representatives. Only “seven electors across the Nation cast faithless votes—the most in a century but well short of the goal.”

Why did the U.S. Supreme Court decide that the Washington Supreme Court was right and that the 10th Circuit was wrong? It looked at the text of the Constitution.

Article II of the Constitution is very straightforward. It says that states can appoint electors “in such Manner as the Legislature thereof may direct.”

Eight Justices agreed that “Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint,” meaning that as a condition of appointment, a state “can demand that [an] elector actually live up to his pledge, on pain of penalty.”

Going further, Justice Elena Kagan, writing for these eight, noted that “nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion.”

Justice Clarence Thomas, who concurred in the judgment, rejected the majority’s Article II analysis because he believes this last point really holds the key to the outcome.

He said, “The Constitution does not address—expressly or by necessary implication—whether States have the power to require that Presidential electors vote for the candidates chosen by the people. Article II, § 1, and the Twelfth Amendment provide for the election for the President through a body of electors. But neither speaks directly to a State’s power over elector voting.”

Regardless, all nine justices agree that the Constitution does not prohibit states from limiting electors’ discretion.

The majority did give nod to the idea that both John Jay in Federalist 64 and Alexander Hamilton in Federalist 68 seemed to indicate that electors would exercise some discretion. But, “Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.”

The “sparse instructions [in the Constitution] took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be.”

Essentially, whether electors can exercise discretion is up to the states. Though, as the majority went on to point out, historical practice from the earliest days of the Republic shows that electors have long pledged to vote for particular candidates rather than to act as free agents.

Out of more than 23,000 electoral votes cast in our nation’s history, only 180 have been faithless votes. And more than a third of those 180 occurred in 1872 when one of the major party’s candidates died after Election Day but before the electors cast their votes. Faithless electors have never affected the outcome of a presidential race.

Justice Joseph Story was an early and authoritative source on American constitutional law. In 1833 he wrote that any “exercise of an independent judgment [by electors] would be treated as a political usurpation, dishonourable to the individual, and a fraud upon his constituents” because in nearly all cases the electors had already “silently” or “publicly pledge[d]” how they would vote.

Echoing Justice Brett Kavanaugh’s concerns at oral argument, this result is faithful to the text of the Constitution and avoids creating chaos if all states had to allow their electors to act as free agents.

After all, while chaos might make for compelling television, it makes for terrible governance.

Kagan emphasized this point by describing what happened in the 1796 election when political rivals John Adams and Thomas Jefferson, “the leaders of the era’s two warring political parties—the Federalists and the Republicans—became president and vice president respectively.”

According to Kagan, “One might think of this as fodder for a new season of ‘Veep,’” the hit HBO series. In reality, though, it made actual governance difficult and created some degree of chaos.

To hammer home this point, Kagan needed to look no further than the next election in 1800 and the popular Broadway show “Hamilton.”

She explained how, when the 1800 election ended up in the House of Representatives because Jefferson and Aaron Burr tied in the Electoral College, “Alexander Hamilton secured his place on the Broadway stage—but possibly in the cemetery too—by lobbying Federalists in the House to tip the election to Jefferson, whom he loathed but viewed as less of an existential threat to the Republic.”

Fortunately, in 1804, the states ratified the 12th Amendment requiring electors to cast separate votes for the president and vice president. That alleviated the chaos caused by the original workings of the Electoral College.

As Heritage Foundation President Kay Cole James succinctly summarized, the court’s decision safeguards our “Electoral College system, which has protected our democratic process and provided unprecedented stability in our form of representative democracy for more than two centuries.”

Through the mechanisms established in our Constitution, including the Electoral College, “We the People” choose our leaders and retain ultimate sovereignty over our own affairs. The Supreme Court has just helped us maintain that sovereignty.

Reprinted with permission from - Daily Signal - by Zack Smith & Hans von Spakovsky

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Joe Austin
1 year ago

Yes, glad this was upheld. But unfortunately, it is still up to the state to decide to punish. How many Democrat-controlled states will punish someone who votes Democrat rather than Republican as they were supposed to? 

Ann
1 year ago

Why only fine the electors $1000? The fine should be much higher.

Brenda Blunt
1 year ago

When the legal American citizen decides who they want, then that person should be getting the vote!!

JohnH
1 year ago

Write your Senators/Congressmen & urge them to keep our current Electoral system. Right now even the smaller populated states have a vote in electing our POTUS

mike
1 year ago

 
The left will still employ cheating and other cooked up methods to tilt the race and the votes in their favor. They never give up and they are thoroughly dishonest in their attempts and “movements”. If by some miracle they did win the presidency bear in mind joe biden will not be there. He will strictly be the figurehead with his strings being pulled from behind by the squad, berinie sanders, and so the real election for the left is about who will replace him via the 25th amendment. Watch carefully what person is picked for VP. That will in actuality be your president. Again manipulated behind the scenes by the aforementioned political hacks.

Bill Brown
1 year ago

Anyone who thinks that either Socialism or Democracy are good, or even acceptable, forms of government have been brainwashed!!!  Understand, the term “representative democracy” is an oxymoron (complete contradiction) and Socialism kills both the spirit and the body!

Bill Brown
1 year ago

Decide to be free!  Take our Country BACK: RED – Remove Every Democrat!!!!!

Patriot Will
1 year ago

In my humble opinion, “faithless electors” are not being logical in their actions. In fact, in my humble opinion, they are extremely corrupt and lawless. I’m very glad to see that the United States Supreme Court used fairness and common sense in making its final ruling.

jimm
1 year ago

Perhaps it’s because of the strange things that are happening with all the conspiracy theories that I question the ruling at this time. I can’t help but wonder if it is felt that the election can be stolen with all the mail-in votes and even the Electors might feel that the results were questionable. Those with a conscience might question whether there was reason to change their vote. Obviously that can’t happen how.

andrew temples
1 year ago

 

Jerry Todd
1 year ago

My friend Law Professor Robert Hardaway wrote; ‘you may have read, the Supreme Court this morning rendered its decision in the Baca case by a vote of 9-0.(we won). I am forwarding a copy of the amicus brief which was submitted to the Court, and which was referred to in oral argument. I’m also attaching a draft of an op-ed I just wrote, should any of you have any suggestions or comments. Bob
 
IK can make these available as well as puff his book, ‘Saving the Electoral College.’ He also writes magnificent historic novels based on actual history.
 
 

Angelica
1 year ago

When the two ILLEGAL appointees vote with the rest, it makes me VERY SUSPECIOUS! There is more to this vote than meets the eye. DON’T trust roberts either! What is REALLY behind this vote when roberts has screwed the American people more than once with his rulings. And when has the other two ILLEGALS appointees ever went along with the rest of them??? At this point in time, I do NOT TRUST anything at face value.

Mark Jebe
1 year ago
Reply to  Angelica

I believe it’s all about the National Popular Vote Compact. This decision allows each State to force its Electors to vote according to State law. Once a State ratifies the National Popular Vote Compact that state’s electors will be forced to vote for whichever candidate wins the national vote count – neutering the Electoral College. The National Popular Vote Compact has been passed by 16 states with a total of 196 Electoral College votes. It’s only 74 Electoral College votes from deciding the next election. If Pennsylvania, Florida and a few others ratify it the Republic will be lost.

JohnH
1 year ago
Reply to  Mark Jebe

Write your elected officials & urge them to keep the Electoral college intact & not let a handful of most populous states choose our presidents.

Ed J
1 year ago
Reply to  Angelica

Your whole premise and argument are false. Don’t know if it is just the result of Culpable Stupidity, a warped (or confused) sense of reality, or an untreated case of paranoia. Lady, please wake up and smell the flowers! You are an embarrassment to yourself with your current mindset.

MOCountry
1 year ago
Reply to  Ed J

That was a little harsh, don’t you think!! I believe she was referring to the two justices appointed by obama. There are many people, including me, who still believe he was NOT qualified, especially by birth, to be POTUS. Therefore, any decisions made by the faker in chief while in the White House was illegal. The real corruption in Washington NEVER gets properly investigated (unless a Republican is accused of wrongdoing), because the media and most of the population won’t demand it! And, no, I am not some uneducated, deplorable, backwoods, tinfoil-hat-wearing redneck (as the democrats like to portray all of us who do not fall in line with them).

Ed J
1 year ago
Reply to  MOCountry

Harsh? Not at all. When people use tainted or inverted “logic” to present an argument, it needs to be called out as such. Angelica’s statement is a case in point, and so is yours. I don’t like Obama any more than you do, but I recall his mother is an American, which makes Obama an American citizen regardless of where he was born. Whether Obama was qualified to be our President is another issue
 
As to the Supreme Court justices, when a vacancy occurs on the Court, whoever the sitting President is nominates someone and the Senate must confirm that person for the job. No confirmation – no job, period! So, there is no such thing as an “Illegal Justice” on the Court – only ones we don’t like or agree with. We definitely don’t have a perfect system, but it is still better than any other on the face of the earth, and we should be thankful for that.

MOCountry
1 year ago
Reply to  Ed J

He (obama) was an American citizen because his mother was an American citizen, I agree, but his FATHER was not. He was not a natural born citizen, as required, but those arguments were also tossed aside at the time. Had obama been PROPERLY vetted, as would definitely be required for a Republican nominee, there’s no way he would have been eligible to run for POTUS. Your “logic” is taking things at face value, and moving on. We pretty much did that with obama’s election, and look where it got us! I’ve served in the military, and been to other countries, so I really don’t need you, with your arrogant attitude, giving me lectures on how great this country is. At this point, I’m just hoping we can keep it.

Ed J
1 year ago
Reply to  MOCountry

I too am a veteran with over 9 years of commissioned service, including command of two units, one of which was a bi-national Korean/American unit in Korea during the Vietnam era. My military experience ingrained in my mind how truly blessed we are with our nation, America. Our shared military experience means we are probably more closely aligned in our thinking than our back and forth comments would suggest, and thank you for your service.

I have no illusions about how our country seems to be moving sideways these days. Chairman Obama, our very own Manchurian candidate, was simply the tip of the spear of the anti-American elements infesting our society. How in hell did a nonentity community organizer from Chicago get accelerated into the Presidency? History will probably illuminate the forces behind him who promoted his ascendancy. Was he simply the shill for some powerful cabal pulling the strings? I would probably say “yes!”  Unfortunately, the ignorant minions of the Demsheviks were conned to elect him in the first place, and then repeated the travesty by giving him a second term. We will be dealing with the dystopia he put in place for generations to come.

MOCountry
1 year ago
Reply to  Ed J

Too bad we don’t have more citizens that think like you do. And thank you, sir, for your service!

Larry W
1 year ago
Reply to  Angelica

Please explain in what way these judges are “illegal”. I know they are not perfect. For the record I’m not happy with the Robert’s vote on Obamacare either.

Paul W
1 year ago

When there’s a 9-0 SCOTUS ruling, especially the current SCOTUS, the opposition’s case has to be over-the-top stupid. Fortunately, Constitutionality prevailed. That is by no means a given with this SCOTUS given the multiple examples to the contrary.

Jack
1 year ago

Another victory over Pelosi and the Libitards who want to do away with the Electoral voting system. Without the Electoral College voting system, NY and Ca would decide who runs the country regardless. When the Electorates take these positions, it comes with an obligation to perform responsibly and not try to induce chaos. A Libitard tactic.
Democracy is not synonymous with Democrats.

Last edited 1 year ago by Jack
BAE
1 year ago
Reply to  Jack

What is wrong with Mrs. Pelosi; the queen of bullies! With Pelosi and Uncle Joe running the country and the many TAX Payers footing the bill for these two. GOD help us …

Annette Ryder
1 year ago

THANK GOD!!!

Mark Jebe
1 year ago

The decision is correct, but the majority argument is wrong. Only Thomas got both decision and argument right. The Constitution allows States to impose whatever behavior they see fit on their Electors.
 
This is why the National Popular Vote Compact is both Constitutional and dangerous. States that ratify it explicitly direct their Electors to cast their Electoral College votes for whichever candidate wins the national popular vote, even if that candidate loses that State’s popular vote. It reduces the power of the Electoral College to even the score between populous east and west coast states and less populous states in the middle. It empowers urban voters and reduces the franchise of rural voters.
 
As regards Federal elections, the Constitution gives so much leeway to States that California could (and surreptitiously is) allow illegal aliens to vote in Federal elections without violating anything in the United States Constitution.
 
I know you’ll all hate hearing that, but it’s true. We need to get together as States and modify the Constitution to take care of problems the framers didn’t imagine – State and Federal politicians so enamored of power they’re willing to destroy the country in order to retain political power over it.

PaulE
1 year ago
Reply to  Mark Jebe

There is no explicit or implicit flaw in the Constitution as written. What the Founders understood from Day One was that for the republic to survive and continue to function for the Peoples’ benefit, the electorate, that being the people for whom our elected representatives at all levels of government are supposed to serve, had to be both well-informed of the issues and activities our elected representatives were involved with and also actively involved in monitoring those elected officials to ensure they acted in a manner the People expected.
 
Sadly, a significant percentage of the American people today are doing either function to hold their elected representatives to account. This percentage of the people expects the country to either run on something approaching auto-pilot or that “somebody else” will look at for their own self interests. Of course this doesn’t work in the personal, public or business world. What you end up with is disaster, if you don’t tend to your personal responsibilities long enough. NO AMOUNT OF RE-WRITING OR MODIFYING OF THE CONSTITUTION will compensate for a growing segment of the public that is either unwilling or too inept to do its portion of the work required to maintain the long-term viability of the country. All any such modification of the Constitution would likely result in is the further empowering of the government at the expense of the Peoples’ rights and freedoms.

Mark Jebe
1 year ago
Reply to  PaulE

You’re aware, I’m sure, the US Constitution has no limit on the number of terms a Congressman or Senator can serve? I consider that a flaw that Congress will never remedy, but which could be remedied by amendment at a Convention of the States.
 
You’re aware, I’m sure, the US Constitution places no limit on the number of years a Supreme Court Justice can serve? I consider that a flaw that Congress will never remedy, but which could be remedied by amendment at a Convention of the States.
 
You’re aware, I’m sure, we’re one of the few countries in the world that grants citizenship to any child born within our borders, no matter the nationality or allegiance of the parents? I consider that a flaw that Congress will never remedy, but which could be remedied by amendment at a Convention of the States.
 
Perhaps you’re less aware the US Constitution allows illegal aliens to vote if the state in which they reside decides to let them? California is quietly allowing them to do so, but could, if it so chose, simply pass a State law allowing anyone within its borders to vote. We could not stop them. The Constitution allows it. That is a flaw that Congress will never remedy, but which could be remedied by amendment at a Convention of the States.
 
The Constitution had flaws (obviously, since we have amendments) some of which became obvious soon after signing, some of which have taken two centuries to rear their ugly heads. The difference between 1820 and 2020 is 200 years ago most of our politicians were of the Revolutionary generation, or sons of the Revolutionary generation; they realized how fragile the country was, and still wanted it to prosper; now few of our politicians are in Washington to improve the country; they’re in Washington to improve themselves, no matter what that does to the country.
 
The only way to get done what needs to be done to reform Washington is to go around Congress and the Deep State; and the only way I know of to do that is a Convention of the States.
 
 

PaulE
1 year ago
Reply to  Mark Jebe

Everything you point out is correctable by an active, informed electorate. Members of Congress can be voted out of office, as easily as they were voted in. Same holds true for elected representatives at all levels of government. The reason we have members in Congress and others holding state and local positions for 20, 30 and 40 years in some cases is that most of the public doesn’t know or even care what their government, at any level, is doing. Same goes for every other issue you bought up. Public apathy and willful ignorance is the root cause.

Voter turnout is horrible. Voter knowledge of issues and their representatives’ voting records is even worse. That all leads to the mess we call Congress, where those politicians feel free to ignore the wishes of their constituents, because of the general apathy and ignorance of the electorate.

No CoS can NOT correct for a public that has effectively checked out and expects “things will just work themselves out” or “somebody else will ensure that this all gets handled, so I don’t have to be bothered”. Nations die when the citizens cease to actively monitor and exert control over the representatives they elect. The Founders understood that concept and wrote about it in the Federalist Papers. That is what Franklin was alluding to when asked what kind a government they had agreed upon. His response was “a republic, if you can keep it” meaning the citizens had a vital role in preserving the country by keeping government in check. Neither term limits nor a full blown CoS modification of the Constitution by a series of amendments is a viable substitute for a public unwilling to do their part. All either would logically end up doing is institutionalizing more power in the hands of the government. I’ve studied every proposal put forth over the last 50 years and the academics pushing for a CoS have consistently used the same false assumptions to justify the push. Not surprising given their focus has been so narrow and exclusionary of current socio-economic realities of the country as it exists today.

Larry W
1 year ago
Reply to  PaulE

Paul E, you hit the nail on the head. It’s up to the voters. I’ve heard people say “my vote doesn’t count”. So there are certain offices that don’t provide much information on where the candidate stands (example, judges) but I think that not being informed and not voting is just plain laziness.

Rik
1 year ago

No matter what, the Communist Democratic Party WILL TRY TO STEAL the next election. Their phony polls that show that Rambling Joe is leading by double digits will be the basis for their screaming that see, Trump cheated because how else could he have won??? … Get ready People, we will have to fight and defend ourselves against this onslaught against the Constitution, the Bill of Rights and our guaranteed rights to Life, Liberty and Freedom! If We lose this next Presidential Election, Communism will have won out and not only will our world change but so will the entire world change and NOT FOR THE BETTER EITHER!!!

JerryH
1 year ago
Reply to  Rik

I wholeheartedly agree. It’s much more than than an attempt to throw out the Constitution, Bill of Rights, and our freedoms. It is an outright takeover of this country in an effort to completely destroy everything good about this nation. We cannot and must not let the Democrats take control. It will be the end of democracy forever. It will chain us and our descendants to the slavery, poverty, misery, and oppression of Communism. Moreover, it will remove the voice of reason and hope from the world stage, condemning our allies to lives of oppression. America was and is the last beacon of hope in this dark, sinister world. If Lady Liberty’s torch goes dark, the entire world goes dark.

Mark Jebe
1 year ago
Reply to  Rik

So what do we do, shoot Democrats? Exactly how are we supposed to fight? Sentiment is fine. Anger is fine, but it accomplishes nothing without a plan, and I don’t see your plan.

BAE
1 year ago
Reply to  Rik

The democratic party is going to steal the election in November. The mail in voting should be illegal; there will be so much fraud. I am so worried. In this day and age, we are going to mail in our vote. They will turn America into a 3rd World country. No doubt.

Robert Hellam
1 year ago

Electors ought to be able to vote their own consciences. It is another republican safeguard against democracy–or at least it was, until this wrong decision.

Ray Holloway
1 year ago
Reply to  Robert Hellam

No, actually, the electors are meant to vote the way their state actually voted, and not “their conscience.”

Mark Jebe
1 year ago
Reply to  Robert Hellam

The Court’s decision is correct, for the wrong reason.

Chris
1 year ago
Reply to  Robert Hellam

The decision is correct as the Constitution does leave the power with the States. If you think electors should have some leeway in casting their ballots then petition your (and other) State gov’t to allow it.

gloria
1 year ago
Reply to  Chris

Just make sure he wins by a landslide. That’s all.

JerryH
1 year ago
Reply to  Robert Hellam

State electors are obligated to vote in sync with the voters in their state. If they were free to vote their conscience, then there would be no need for them to exist. They serve to represent the electorate, not their personal preferences.

Larry W
1 year ago
Reply to  JerryH

EXACTLY RIGHT

Ed J
1 year ago
Reply to  Robert Hellam

Your comment demonstrates a profound, fundamental and total ignorance of our Electoral College System, how it works and why our Founding Fathers set it up the way they did. Suggest you go back to school and take several American History courses, and a couple of Civics courses too. Try to avoid the libtard professors who use these courses for propaganda and to push their dystopian agendas. You need to get the facts before you spout off such nonsense. Until you rectify your Fake News understanding of this issue, you will be part of the problem and not part of the solution.

Ruth Messare
1 year ago

Great information ! The US public needs to hear this !

Mark
1 year ago
Reply to  Ruth Messare

Even more importantly, the voters must understand this!

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