NO TO ROGUE ELECTORS!

US Supreme Court sides with popular vote

On July 06, the US Supreme Court ruled unanimously that a state may require presidential electors to support the winner of its popular vote and may punish or replace those who don’t. Under the system set out in the US Constitution in the 18th century, a presidential election’s winner is determined not by amassing a majority in the national popular vote, but by securing a majority of electoral votes allotted to the 50 US states and the District of Columbia. The justices unanimously rejected the idea that electors, who act on behalf of a state in the Electoral College vote that occurs weeks after voters go the polls, can exercise discretion in the candidate they back. The decision has erased a potential complicating factor in the Electoral College as President Donald Trump seeks re-election on Nov. 3 against Democratic challenger Joe Biden. The court sided with Washington state and Colorado, which had imposed penalties on several “faithless electors” – so named because they defied pledges in 2016 to vote for the winner of their states’ popular vote, Democrat Hillary Clinton. “It reflects a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen,” the Court held.

The US Supreme Court has four simple words for members of the Electoral College who fail to back the winner of their state’s popular vote in presidential elections: “We the people rule.”

In a unanimous decision, the nine-member court has ruled that members of the Electoral College, the body that elects the US president, are not “free agents” and that states may penalize them for breaking their pledge. “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,” Justice Elena Kagan wrote in a 33-page opinion on behalf of the court.

The decision came in a pair of cases involving so-called “faithless electors,” members of the Electoral College who choose someone other than the presidential candidate who carries their state’s popular vote. Although “faithless electors” have never influenced the outcome of a US presidential election, the ruling restores a degree of certainty to the electoral system ahead of another contentious presidential vote in November this year.

Most states compel their presidential electors to take a pledge to support the winner of the statewide vote. Of these, 15 states have laws that fine or remove electors for breaking their promise.

 

 

Background

The U.S. method of picking presidents is unique in the world.

When Americans cast their ballots for a presidential candidate, they are actually choosing members of the Electoral College, the 538-member body that meets later to formally elect the president. To become president, a candidate needs at least 270 electoral votes. 

In November 2016, shortly after Donald Trump’s victory but before the Electoral College voted, a group of Democratic presidential electors concocted a scheme to head off the real estate mogul’s entry to the White House. 

With no Republican elector willing to jump ship and pick Hillary Clinton, Democratic electors Peter Chiafalo and Michael Baca figured the only way they could stop Trump was to persuade other electors to “write in” a compromise candidate such as former Secretary of State Colin Powell.

 

Recruiting four fellow Democratic members of the Electoral College, they formed a group they called the “Hamilton Electors,” claiming that American founding father Alexander Hamilton wanted electors to stop an “unqualified demagogue” from taking office.

Not a single Republican elector flipped. But when Chiafalo and two fellow Democratic electors in Washington state went ahead and voted for Powell instead of Clinton, the winner of the statewide vote, state authorities fined each $1,000. In Baca’s case in Colorado, another state carried by Clinton, he was removed before he could cast his vote for another Republican candidate. 

The Democratic activists then sued their states for disciplining them, setting off a legal chain reaction that ended up before the Supreme Court this year. 

The Court has spoken

The questions before the justices boiled down to this: Are electors “free agents” allowed to vote their minds, or are they “proxies” for the popular will? And can states punish them if they go against the wishes of the voters?

During oral arguments in May, lawyers for Chiafalo and Baca argued that while states have the power under the Constitution to appoint members of the Electoral College, they have the right to vote however they please.

But lawyers for Washington state and Colorado said that the Constitution gives states the power to both appoint and remove the electors. What’s more, they said, allowing electors to vote as they wish could lead to chaos in presidential elections.

The Supreme Court agreed. Kagan wrote that the U.S. Constitution gives states “broad powers over electors and gives electors themselves no rights.” 

“Among the devices states have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others,” she wrote, adding, “A state follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise.” 

When a state directs its electors that they can’t vote against the wishes of the people, Kagan continued, that “direction accords with the Constitution — as well as with the trust of a nation that here, We the People rule.”

Impact

Without uniform commitment to prevent faithless electors, this decision won’t fix much. With this decision, states should move quickly to adopt the Uniform Faithful Presidential Electors Act to categorically end the prospect of faithless electors. Currently just 15 states have laws in place to cancel faithless votes. Put another way, 70% of the states would have no recourse to prevent a faithless elector this fall unless they take quick action. Unless they do so, we can expect that a number of electors in those “free agent” states will consider going rogue.

Scrapping the Electoral College?

While the framers of the U.S. Constitution back in 1789 had faith in the ideals of democracy and self determination, they were also terrified of “mob rule” and the risk of populism. Within the Constitution, they built safeguards such as state legislatures choosing U.S. Senators and the Electoral College which put presidential voting on a state by state rather than national basis. The idea in both cases was that serious choices would be in the hands of picked men and not the unwashed masses. While the 17th Amendment, ratified in 1913, established the direct election of senators, the Electoral College has lingered as an antipopulist holdover. This had clear impacts in recent elections with both George W. Bush in 2000 and Donald Trump in 2016 gaining the presidency with electoral college victories despite both having lost the popular vote in those elections.

At the time the Electoral College was created it satisfied a need for the young republic. With broader education in the voting population and campaigns targeting individual voters regarding issues, that need is no longer in place. All voters have the opportunity to become educated about the issues facing the country and the concept of having “picked men” making decisions for others is patently offensive.

It is time to consign the Electoral College to the dustbin of history and put the power in the hands of the people to select leaders based on the tradition of one person, one vote. It is time for America to adopt the direct election of presidents.