WASHINGTON — The Supreme Court seemed ready on Wednesday to allow states to require members of the Electoral College to cast their votes for the presidential candidates they had pledged to support.
In two arguments concerning “faithless electors” from the states of Washington and Colorado, several of the justices focused on the practical consequences of their ruling or, as Justice Brett M. Kavanaugh put it, “the avoid-chaos principle of judging.”
“If it’s a close call or a tiebreaker,” he said, “we should not facilitate or create chaos.”
The arguments explored the original understanding of the framers of the Constitution, historical practice and contemporary expectations. Most of the justices seemed to conclude that there was no clear answer and that states should have leeway to vindicate voters’ expectations that electors will vote for the presidential candidates who won at the polls.
“In most states,” Justice Samuel A. Alito Jr. said, “the electors are not even listed on the ballots.”
Many states have laws requiring electors to pledge that they will support the winner of the state’s popular vote, but electors occasionally go rogue.
On election night in 2016, for instance, the electoral vote was expected to be 306 for Donald J. Trump and 232 for Hillary Clinton. In the end, though, it was 304 to 227.
Seven electors succeeded in voting for other candidates. In Washington State, three Democratic electors cast their electoral votes for Colin L. Powell, and a fourth Democratic elector voted for Faith Spotted Eagle, a Native American tribal leader and prominent opponent of the Keystone XL pipeline. A Democratic elector in Hawaii voted for Senator Bernie Sanders of Vermont. Republican electors in Texas voted for John Kasich, then the governor of Ohio, and Ron Paul, a former representative of Texas.
Three more Democratic electors — in Colorado, Maine and Minnesota — tried to vote for candidates other than Mrs. Clinton. Two were replaced, and a third eventually chose her.
A swing by just 10 electors would have been enough to change the outcomes in five of the previous 58 presidential elections, according to a Supreme Court brief. In the 2000 election, after an assist from the Supreme Court, George W. Bush beat Al Gore by just five electoral votes.
The Supreme Court heard appeals on Wednesday from two decisions that came to opposite conclusions about whether electors may disregard their pledges.
In the first case, Chiafalo v. Washington, No. 19-465, the Washington State Supreme Court upheld fines of $1,000 imposed on three electors. The majority said the Constitution allowed states to insist that electors vote for their parties’ candidates.
Lawrence Lessig, a law professor at Harvard representing the electors, said the state could not punish his clients. They were guaranteed independence by the Constitution, Mr. Lessig said, and had at most violated a moral obligation rather than a legal requirement. States have the power to appoint electors, he said, but no power to regulate how they vote.
Noah Purcell, Washington’s solicitor general, said states may control electors’ votes. “The Constitution gives states the power to appoint electors,” he said. “That power has always included the power to set conditions on appointment.”
Allowing electors to violate their pledges in the face of state laws requiring them to vote as they had promised “would radically change the way American presidential elections have always worked in our country,” Mr. Purcell said.
The second case, Colorado Department of State v. Baca, No. 19-518, was an appeal from a decision of the United States Court of Appeals for the 10th Circuit, in Denver, that said Colorado had been wrong to discard a vote from a Democratic elector who had wanted to cast a ballot for Mr. Kasich.
“Electors, once appointed, are free to vote as they choose,” Judge Carolyn B. McHugh wrote for the majority of a divided three-judge panel. “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.”
Philip J. Weiser, Colorado’s attorney general, said that ruling “could occasion a constitutional crisis.”
Justice Ruth Bader Ginsburg found that concern overstated. “Faithless voting throughout the years has always been rare,” she said.
Jason Harrow, a lawyer for the Colorado electors, said the court should not adopt a rigid rule that would forbid electors from violating their pledges in elections in which, for instance, the presidential candidate died, had a stroke or was involved in fraud or bribery.
Justice Ginsburg responded that she was in favor of what she called a supple rule. “The states are being given leeway to do it one way or the other way,” she said.
The Colorado case was heard by an eight-member court. Justice Sonia Sotomayor recused herself because she is friends with Polly Baca, one of the electors in the case.
Judge McHugh of the 10th Circuit said the text of the Constitution supported elector independence. The words of the relevant provisions, including “elector,” “vote” and “ballot,” she wrote, “have a common theme: They all imply the right to make a choice or voice an individual opinion.”
Alexander Hamilton made a similar point in discussing electors in the Federalist Papers. “Men chosen by the people for the special purpose” of selecting the president, he wrote, “will be most likely to possess the information and discernment requisite to such complicated investigations.”
But several justices said neither the words of the Constitution nor historical materials provided a clear answer. That meant, they said, that the matter should be left to the states.
Source: Elections - nytimes.com
