This could cut both ways politically, but the important point is that electors must follow the popular will.
The Supreme Court ruled unanimously Monday that a state may require presidential electors to support the winner of its popular vote and punish or replace those who don’t, settling a disputed issue in advance of this fall’s election.
Justice Elena Kagan wrote for the court, and attempted to settle the disputed “faithless elector” issue before it affected the coming presidential contest.
The Washington state law at issue “reflects a tradition more than two centuries old,” she wrote. “In that practice, electors are not free agents; they are to vote for the candidate whom the state’s voters have chosen.”
In an opinion that referred to both the Broadway musical “Hamilton” and the HBO sitcom “Veep,” she 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.”
It is one of the rare political cases at the court that seems not to favor one party over another, which might explain the unanimity. (Justice Clarence Thomas disagreed with the majority’s reasoning, but not the outcome).
Both red and blue states urged the justices to settle the matter in advance of the “white hot” glare of the 2020 election. They said they feared a handful of independent-minded members of the electoral college deciding the next president.
The court considered cases from the state of Washington and Colorado. Washington moved to fine Peter Bret Chiafalo and two others $1,000 after they voted for Colin Powell when the electoral college convened after the 2016 election. They had pledged to vote for Hillary Clinton, who won the state’s popular vote.
Colorado replaced Micheal Baca when he said he intended to vote for Republican John Kasich instead of Clinton, who won his state. Baca was part of a movement to try to deny Donald Trump the presidency.
The Washington Supreme Court ruled for the state, saying the Constitution’s directive that gives states the power to select members of the electoral college also means they can set the standards those electors must follow, such as living up to their pledge to support the state’s popular winner.
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A panel of the U.S. Court of Appeals for the 10th Circuit went the other way. It said Colorado’s control ended with deciding how electors from the state are chosen. From there, the Constitution envisions that the 538 electors are free to vote their minds in deciding who should be president and vice president.
All but two states have winner-take-all systems, and 32, plus the District of Columbia, require those running to be electors to pledge to support the state’s winner. The states vary as to penalties, if any, for breaking their word or whether electors with a change of heart may be replaced.
States had asked the court to settle the matter, in case the November election was close enough that a small number of what are sometimes called “faithless electors” could determine the outcome. The 2000 election, for instance, was decided by five electoral votes.
“Article II includes only the instruction to each state to appoint, in whatever way it likes, as many electors as it has senators and representatives,” barring only members of the federal government from appointment, she wrote.
The cases were Chiafalo v. Washington and Colorado Department of State v. Baca.