Supreme Court Upholds ‘Faithless Elector’ Laws, Which May Impact 2020 Presidential Election
For over 200 years, the people of the United States have not selected their president directly. Rather, a body of voters, called the Electoral College, elects the president based on how the voters of their respective states vote. The Electoral College is not something that merely exists on paper, however. It is comprised of real people, selected according to various mechanisms in each of the 50 states, whose votes determine the winner of each presidential election.
For centuries, it’s been a matter of course that the members of the Electoral College vote for whom they were pledged to vote. Twice in recent decades, the eventual winner of the presidential election lost the overall popular vote (George W. Bush in 2000, and Donald Trump in 2016).
To that end, some states have been concerned that electors will not vote based on their state results — so-called “faithless electors.” This happened twice in 2016, though in neither case did the votes have any real bearing on the outcome of the election. However, should that happen on a large scale, the election could be thrown into chaos. In response to the risk, several states have passed laws that would remove electors from their posts or punish them with fines, if they don’t vote faithfully.
In Colorado, Michael Baca pledged his vote to Hillary Clinton when Clinton won The Centennial State in the popular vote. It was expected that Baca would make his vote for Clinton official, as would the other 8 Colorado electors. However, Baca instead voted for John Kasich. He was removed on the spot under Colorado’s faithless elector law.
Similarly, in Washington, Bret Chiafalo, along with his 11 colleagues, was pledged to vote for Hillary Clinton after the former Secretary of State won the state’s popular vote. However, Chiafolo and two colleagues instead voted for Colin Powell. They were fined $1,000 each under Washington’s faithless elector law.
Baca, Chiafolo, and other plaintiffs filed suit, saying that the laws that bound them to certain candidates were unconstitutional. However, the Supreme Court disagreed.
Justice Samuel Alito envisioned a situation where the popular vote was close, and “just a few” electors could be persuaded to vote contrary to their pledges. Should that happen, he says, the losing party would “launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.”
Similarly, Justice Brett Kavanaugh said that if the election is close, the absolute last thing the country needs is even further chaos.