The Supreme Court on Friday agreed to hear two cases that could play a major role in deciding the 2020 presidential election. With some experts predicting that the election between a yet-to-be-decided Democratic nominee and incumbent President Donald Trump will be too close to call, the outcome could come down to a vote in the Electoral College.
The Supreme Court decision, which the justices said will be issued before Election Day, will have a direct impact on how that vote is conducted, according to a USA Today report.
The Electoral College is largely the brainchild of U.S. founding father Alexander Hamilton, co-author of The Federalist Papers, a set of 18th-century essays explaining the reasoning behind the provisions of the Constitution.
In The Federalist Papers, Hamilton wrote that the Electoral College was designed to stop unqualified candidates from becoming president — even if a majority of the public voted for them. While the average voter could easily be swayed by candidates with “talents for low intrigue, and the little arts of popularity,” the much wiser electors would not be as easily fooled, Hamilton believed.
As a result, electors have long been considered free to vote for any candidate they choose, regardless of how their own states voted. But that could change as a result of the upcoming Supreme Court decision.
Twenty-nine states and the District of Columbia have laws that impose fines on so-called “faithless electors” who ignore voters and cast their ballots for candidates of their own choosing. That happened 10 times in the 2016 election between Trump and Democrat Hillary Clinton, according to The Washington Post.
Among those were three electors in Washington State who voted for retired Gen. Colin Powell rather than Clinton, who won the state. In Colorado, one elector cast his ballot for Ohio’s Republican Gov. John Kasich, rather than for Clinton, who also won that state.
In Washington State, the three electors challenged the $1,000 fines levied against them for their freelance votes, but lost in the state’s own supreme court.
In Colorado, however, the 10th Circuit U.S. Court of Appeals ruled in favor of “faithless” elector Micheal Baca, saying that while states have the power to choose who the electoral voters will be, the Constitution “does not provide the states the power to interfere once voting begins,” as quoted by The Washington Post.
The Supreme Court on Friday agreed to hear the two cases, potentially resolving the discrepancy between the two courts, and deciding once and for all if electors may vote “their conscience.”
Five presidential elections have been decided by 10 or fewer Electoral College votes, according to The New York Times, most recently the 2000 election in which George W. Bush defeated Democrat Al Gore by only five electoral votes.