Supreme Court grapples with letting presidential electors vote freely

Greg Stohr and David McLaughlin

U.S. Supreme Court justices seemed reluctant to give members of the Electoral College the right to vote as they please, saying the result in a close election could be “chaos” when that body formally selects the president.

In the last arguments of their first-ever telephone session, the justices on Wednesday suggested they would let states remove or penalize so-called faithless electors who refuse to vote for the winner of the statewide vote. The court heard cases from Washington and Colorado.

Justice Samuel Alito said giving electors free rein could produce “chaos” in a close presidential election. He asked whether the response of the losing party “would be to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.”

Electors are appointed to the Electoral College only if their party’s candidate wins, and the broad expectation is that they will support that candidate. But in 2016, 10 “faithless electors” voted, or tried to vote, for someone other than Donald Trump or Hillary Clinton. Only nine electors had voted for someone other than their party’s candidate from 1900 to 2012.

No faithless elector has ever swung an election, but Justice Brett Kavanaugh said that didn’t matter. He invoked what he called the “avoid-chaos school of judging.”

“We have to look forward,” Kavanaugh said. “And just being realistic, judges are going to worry about chaos.”

About 30 states attempt to bind electors to the winning candidate, though some of those states don’t penalize people who cast deviant votes.

Under the U.S. system, each state’s number of electors is equal to its representation in Congress – two senators plus members of the House. Almost all states use a winner-take-all system, in which the candidate who wins the state’s popular vote is entitled to the full slate of electors. Two states, Nebraska and Maine, have systems that can produce a split electoral vote.

Lower courts are divided on whether states can enforce a requirement that electors vote for the state’s top vote-getter. A federal appeals court ruled that Colorado violated the Constitution when it removed Michael Baca as an elector and canceled his vote. Baca, a Democratic elector, had voted for Republican John Kasich instead of Clinton, who won the statewide vote.

The Washington Supreme Court, however, upheld $1,000 fines imposed on three people who voted for former Secretary of State Colin Powell instead of Clinton.

The Supreme Court ruled in 1952 that states could require electors to support their party’s nominee, but the court has never said what, if any, enforcement steps states can take.

Frodo Baggins

The electors in the two cases say the Constitution’s 12th Amendment provides detailed instruction on how the electoral vote proceeds, precluding state interference once the electors are appointed. Washington and Colorado say Article II of the Constitution and the 12th Amendment give states broad power to regulate electors.

Several justices said they worried that electors might have no constraints, less even than members of Congress when they vote. Justice Clarence Thomas raised the possibility that an elector might vote for Frodo Baggins, a character from J.R.R. Tolkien’s “The Lord of the Rings.”

“You’re saying under your system you can’t do anything about that,” Thomas said to Jason Harrow, representing Baca in the Colorado case.

Harrow said a state could take steps to stop that vote, though only because Frodo Baggins is a fictional character.

Chief Justice John Roberts asked Harrow whether an elector could just flip a coin to decide how to vote. When Harrow said yes, Roberts responded, “That sounds pretty limitless to me.”

Justice Ruth Bader Ginsburg said Congress has historically counted the votes of faithless electors. “It has always accepted the anomalous vote,” she said.

But Ginsburg didn’t press that point when Washington Solicitor General Noah Purcell responded that Congress also counted votes cast by replacement electors appointed by two states in 2016.

The cases are Chiafalo v. Washington, 19-465, and Colorado Department of State v. Baca, 19-518.

2020 Bloomberg L.P.