July 6, 2020
The Supreme Court ruled unanimously Monday that states are free to remove and punish presidential electors who break with their pledges to support designated candidates.
Advocates for so-called faithless electors argued that the Constitution’s silence on the issue should prevent states from being able to fine or swap out electors who stray from the winner of the statewide popular vote, but the justices ruled that states can use such measures to coerce electors to remain true to their commitments.
Writing for all but one of her colleagues, Justice Elena Kagan said allowing punishment of wayward electors was consistent with the Constitution and American tradition.
“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 wrote in her majority opinion.
Kagan emphasized that the founders had ample opportunity to include language protecting electors’ free choice — in fact they had contemporary examples to draw from — but opted against it.
Justice Clarence Thomas reached the same ultimate conclusion, but declined to join Kagan’s opinion and wrote separately. Thomas said the Tenth Amendment, reserving unenumerated powers to the states and people, should be read to allow states the power to police their electors.
“Powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power,” Thomas wrote, in an opinion partially joined by Justice Neil Gorsuch, who also signed onto Kagan’s opinion in full.
In 2016, seven of the 535 electors cast votes at odds with the popular-vote winners and three attempted to do so. Most of the faithless electors were part of an unsuccessful attempt to seek out a moderate, more conventional presidential contender who could deny Donald Trump the presidency.
The cases ruled on Monday involved suits filed by electors in Colorado, after an elector there had his vote for former Rep. John Kasich invalidated, and in Washington state after the state imposed $1000 fines on several electors who strayed from Democratic nominee Hillary Clinton.
The court issued full opinions only in the Washington dispute, leaving lower courts to resolve the Colorado case, but appearing to bless that state’s laws on electors as well.
Kagan noted that the court’s opinion doesn’t extend to every conceivable scenario where states might try to coerce electors, including some possibilities offered by advocates for the so-called faithless.
For example, if the winning presidential candidate dies after Election Day but before the Electoral College casts its votes, states can’t necessarily force electors to cast ballots for a dead person, Kagan wrote.
And she notes that other limits in the Constitution would apply to state laws — for example state restrictions on electors couldn’t violate the Equal Protection clause or impose additional qualifications for presidential candidates.
Kagan didn’t give examples, but California recently tried to add a requirement that presidential candidates release their tax returns. The courts blocked that.
At oral arguments in May, the justices also discussed the possibility that states could condition the votes of their electors on whether a candidate had visited a state. Monday’s ruling doesn’t address that possibility.
Amidst the dry legal analysis in Kagan’s majority opinion, the Obama appointee managed to slip in a couple of pop culture references. There was a shout-out for the hit musical, “Hamilton,” as Kagan noted that under the original Electoral College rules, Hamilton engineered Thomas Jefferson’s victory in 1801 by persuading electors to give Jefferson the nod over Aaron Burr. (Burr later killed Hamilton in a duel.)
“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,” Kagan wrote.
Kagan also demonstrated her knowledge of political TV comedies, by suggesting that the awkward outcome of the first Electoral College fight in 1796—where the presidency and vice presidency went to members of rival parties—could be good “fodder for a new season of Veep.”
Both sides in the cases decided Monday insisted that a ruling for the other would have bizarre and unintended consequences — some with alarming implications for the 2020 election, particularly if it’s a close race.
State officials said putting electors beyond the coercive power of state law could effectively immunize the bribery of electors.
Though states have long governed the rules around the selection and votes of presidential electors, the process is largely driven by political parties. Each party typically chooses a slate of electors who would cast the official votes for the state depending on the winner of the state’s popular vote. In other words, Democratic electors cast ballots in states won by Democratic candidates, and Republican electors cast ballots in states won by Republicans.
In most election cycles, this has led to a drama-free process, with nearly all electors voting for their state’s winner and the rare, few “faithless” votes being tallied without consequence. But 2016 changed the equation when a group of Democratic electors seeking to block Trump’s ascendance to the presidency sought to rally Republican electors against him. The group, dubbing itself the Hamilton Electors in a nod to Alexander Hamilton’s Federal Papers defense of electors’ free choice, vowed to cast their own votes for a more mainstream Republican alternative.
After the 2016 election, as evidence emerged indicating that Russia had intervened in the election on behalf of Trump, Democratic electors demanded, but were denied, intelligence briefings that might inform their choices. Aides to Clinton kept tabs on the effort but never formally endorsed it. Republicans, meanwhile, employed their own whip operation and monitoring to ensure their electors remained aligned with Trump.
In the end, just two Republican electors, both in Texas, broke from Trump.
The cases decided by the Supreme Court stem from that hard-fought presidential race.
Micheal Baca and Polly Baca — no relation — were both presidential electors from Colorado who helped lead the Hamilton Electors effort, worked to inspire about three-dozen Republican electors to join them and swing the vote away from Trump.
But when Micheal Baca tried to cast his vote for a Republican, defying Colorado’s popular vote for Clinton, the secretary of state refused to count it and moved to replace him as an elector. Ultimately, Baca’s attempted vote wasn’t counted, and he sued.
In Washington state, four electors on the slate supporting Clinton were fined $1,000 apiece for casting their ballots for others. Three backed Colin Powell in what they said was a protest against Trump’s abrasive and confrontational campaign style. A fourth, a Native American activist, diverted to vote for another American Indian leader, Faith Spotted Eagle.
The various efforts were ultimately inconsequential, but the 2016 Electoral College vote featured more “faithless” votes than any in history, with seven electors — representing nearly 5 million voters — defying the popular vote in their states. Several other attempted faithless votes were blocked.
The effort also renewed national focus on the creaky and untested processes that surround the Electoral College, as well as an effort by a growing list of states to circumvent it by pledging their votes to the winner of the national popular vote. A multistate compact has been in progress for years but only triggers when enough states comprising the majority of all electors sign onto the plan.
In a way, though, the frenetic lobbying effort to swing the election foreshadowed the constant crisis atmosphere that has surrounded the Trump election and presidency. Electors, historically anonymous figures elected at little-noticed political party functions, found themselves bombarded by pressure campaigns and threats. And as evidence of Russia’s attack on the 2016 election began to trickle out, Clinton backers urged that electors be briefed on classified intelligence in order to factor it into their votes.
One justice, Sonia Sotomayor, voted on the Washington case but sat out of the Colorado one. About two months after the court agreed in January to hear both disputes, Sotomayor revealed that she was recusing herself from the Colorado case due to a friendship with Polly Baca.
In a ruling more than half a century ago, the Supreme Court held that it was constitutional for state parties to require electors to sign pledges, but stopped short of saying the electors could actually be forced to follow those pledges or face consequences.
Two justices, Robert Jackson and William Douglas, dissented from that 1952 decision and argued that the Constitution envisioned broad discretion for electors.
“No one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices,” Jackson wrote, joined by Douglas.