WASHINGTON – The Supreme Court entered the 2020 presidential fray Friday by agreeing to decide a threshold question before Election Day: Must the 538 members of the Electoral College vote for their states’ winning candidates?
Yes, the Supreme Court of Washington State ruled in May, upholding $1,000 fines against three Democratic electors who cast their votes in December 2016 for Colin Powell rather than Hillary Clinton, who had won the state a month earlier.
No, the U.S. Court of Appeals for the 10th Circuit ruled in August, upholding the vote cast for Republican John Kasich rather than Clinton by a Democratic elector in Colorado.
Never before have the freewheeling inclinations of some Electoral College members flipped an election, so the impact of the high court’s decision may be just mathematical. But the 2020 race between President Donald Trump and his eventual Democratic opponent could be too close for such comfort.
“This court should resolve this conflict now, before it arises within the context of a contested election,” Harvard Law School professor Lawrence Lessig urged on behalf of the three Washington State electors. He noted that 10 electors either went rogue or tried to do so in 2016, enough to change the results of five previous presidential elections.
“As the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this court to resolve the question of electoral freedom within the context of an ongoing contest,” Lessig warned.
Under the Constitution, each state appoints electors to cast the electoral ballots apportioned by the popular vote. Twenty-nine states and the District of Columbia require electors to vote for their party’s candidate; some block nonconforming ballots from being counted or replace the electors, while a few provide for criminal penalties.
The Washington State Supreme Court ruled that the state was within its rights to issue the first-ever fines for so-called faithless electors.
“An elector acts under the authority of the state, and no First Amendment right is violated when a state imposes a fine based on an elector’s violation of his pledge,” the court ruled in an 8-1 decision.
The 10th Circuit appeals court set a different precedent in the Colorado case. “The states may not interfere with the electors’ exercise of discretion in voting for president and vice president by removing the elector and nullifying his vote,” the court ruled.
The split between the two courts – as well as the real prospect that free-thinking electors could decide who wins the White House this year or in the future – likely swayed the justices into action.
Even the Colorado elector whose vote for Kasich was upheld agreed that the Supreme Court should weigh in. Only Washington State urged the justices to stay away.
To grant electors such independence, state Solicitor General Noah Purcell wrote the justices, “would mean that only 538 Americans – members of the Electoral College – have a say in who should be president; everything else is simply advisory.”