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On Monday, the United States Supreme Court unanimously ruled that a state may require its members of the electoral college to cast their vote for the presidential candidate who wins the popular vote in the state, penalizing electors who don’t.
In the US, Americans don’t directly vote for their preferred presidential candidate, rather, they vote for electors who are nominated by political party leaders from both sides in each state. The state’s winning party’s electors then represent the state in the Electoral College, pledging to cast their vote for that party’s presidential candidate.
However, in some cases, “faithless electors” can cast their vote for a candidate different from the one they had pledged to support.
Writing in the majority opinion, Justice Elena Kagan stated, “The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for president.”
Kagan further added, “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. We hold that a State may do so."
Kagan was joined in her opinion by seven other judges. Justice Clarence Thomas, joined in part by Justice Neil Gorsuch dissented from the majority opinion but not the ruling.
Thirty-two states and the District of Columbia have laws that compel electors to pledge their support to the presidential candidate who secures the state’s popular vote. 15 of those states also have penalties for the ‘faithless electors’ who don’t vote for the state’s chosen candidate. The court’s ruling only holds that it is constitutional for states to enforce laws that penalize faithless electors. It does not apply to states without such laws.
The ruling relates to two cases, one from Washington and the other Colorado.
After the 2016 election, Washington fined Peter Brett Chiafalo and two other electors US$1,000 for voting for former Republican Secretary of State Colin Powell instead of Hillary Clinton, who had in fact won the state’s popular vote in the 2016 presidential elections.
In 2016, Colorado also replaced Micheal Baca and discarded his vote for Ohio’s then Republican Governor John Kasich, as the state’s popular choice was Clinton.
The electors were part of the Hamilton Electors movement that sought to deny Donald Trump the presidency by attempting to unite both Democratic and Republican electors to vote for a compromise Republican candidate they found less objectionable than Trump.
In the court’s majority opinion, Kagan explained the Washington electors’ thinking but also noted the futility of the process.
“The three hoped they could encourage other electors — particularly those from states Donald Trump had carried — to follow their example.”
She added, “Only seven electors across the nation cast faithless votes — the most in a century, but well short of the goal. Candidate Trump became President Trump.”
She stated that although many faithless votes were counted in Congress throughout history, none affected the election outcome, adding that both history and constitution favor the state restrictions on faithless electors.
In May 2019, the Washington State Supreme Court upheld fines against the state’s three faithless electors, with the majority ruling that the penalty is constitutional. However, in August 2019, the US Appeals Court for the 10th Circuit made the opposite ruling for the Colorado case.
In January this year, the Supreme Court granted review of the petition filed by Washington’s three faithless electors after the Appeals Court decision on the Colorado case. Referring to the upcoming November election, the petitioners urged the Supreme Court to settle the matter “outside of the white-hot scrutiny of a contested presidential election.”
Writing for the majority in the Colorado case, Judge Carolyn McHugh stated, “While the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote or to appoint a new elector to cast a replacement vote.”
She added that the words “elector,” “vote” and “ballot,” “have a common theme: They all imply the right to make a choice or voice an individual opinion.”
Kagan rejected this reasoning, stating, “ Those words need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying that he ‘votes’ or fills in a ‘ballot.’”
She added that the Washington state law that penalizes faithless electors, “reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.”
Kagan added: “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.”
In his dissent, Justice Thomas wrote that interpreting the Constitution’s language regarding the powers vested to the Electoral College is not needed. He argued that under the 10th Amendment, powers not delegated by the US constitution are reserved to the state and its people.
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