The Supreme Court ruled Monday that US states have the right to remove and punish members of the Electoral College for not backing the presidential candidate whom they pledged to support.
The unanimous ruling, which comes ahead of November’s election between President Donald Trump and Democratic challenger Joe Biden, allows states to use measures to bind Electoral College members to their commitments, essentially preventing them from going against the will of a state’s voting majority.
Enter ‘faithless electors’
The Electoral College, a peculiarly American institution, is comprised of 538 electors who translate the popular vote by casting their ballots in favor of the candidate who gets the most votes in each state.
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Historically, so-called faithless electors have been rare. During the presidential elections organized from 1796 to 2016, only 180 electors have voted contrary to their pledge, according to a document admitted to the court.
Advocates of faithless electors argued that since the Constitution makes no mention of the issue, states should not be allowed to fine or remove electors who do not remain true to their commitments.
But all nine Supreme Court justices concluded that states can assure that their electors “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." Repeatedly Kagan references the will of "state's voters" and electors reflecting the voice of voters within a state. /3 #ElectoralCollege— Tara Ross (@TaraRoss) July 6, 2020
“That direction accords with the Constitution — as well as with the trust of a nation that here, We the People rule,” they wrote, invoking the opening words of the US Constitution.
Supreme Court Rules: Electors should be policed by respective states
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.
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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.
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In 2016, seven of the 535 electors cast votes at odds with the popular-vote winners, including five who declined to cast votes for Hillary Clinton even though she won the vote in the states of those electors. Two declined to vote for Trump.
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.
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Kagan didn’t give examples, but California recently tried to add a requirement that presidential candidates release their tax returns. The courts blocked that.
Faithless electors have never upended an election result, but Justice Brett Kavanaugh said in May arguments that the court had “to look forward … and worry about chaos.”
What are the Rulings of the past concerning this matter?
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.
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Fifteen states already have laws that allow sanction of faithless electors, including his or her immediate removal and replacement with an alternate whose vote the state reports instead.
A few states impose monetary fines on electors who flout their pledge.
GVS News Desk with additional input by AFP
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