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Electoral college voters can be punished for going rogue, U.S. Supreme Court rules

The U.S. Supreme Court ruled unanimously Monday that states can require presidential electors to back their states' popular vote winner in the Electoral College.

Top court heard cases in which electors didn't choose Hillary Clinton in 2016 despite state results

Hillary Clinton, left, and Colin Powell, right, pictured at an event in Washington, D.C., in January 2017. The previous month, three so-called faithless electors in Washington state cast votes for Powell, who has never run for president. (Mark Wilson/Getty Images)

The U.S. Supreme Court ruled unanimously Monday that states can require presidential electors to back their states' popular vote winner in the Electoral College.

The ruling, just under four months before the 2020 election, leaves in place laws in 32 states and the District of Columbia that bind electors to vote for the popular-vote winner. Electors almost always do so anyway.

So-called faithless electors have not been critical to the outcome of a presidential election, but that could change in a race decided by just a few electoral votes. It takes 270 electoral votes to win the presidency.

Justice Elena Kagan wrote for the court that a state may instruct electors "that they 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."

The justices had scheduled arguments for the spring so they could resolve the issue before the 2020 election rather than amid a potential political crisis after the country votes.

When the court heard arguments in May by telephone because of the coronavirus outbreak, justices invoked fears of bribery and chaos if electors could cast their ballots regardless of the popular vote outcome in their states.

Not bound to popular vote total, Colo. court ruled

The two lead plaintiffs in the cases decided on Monday, Bret Chiafalo and Micheal Baca, were Democratic electors who sought to persuade Republican electors to disregard their pledges and help deny Donald Trump the presidency. They cast their ballots for moderate Republicans and not Hillary Clinton even though she won the popular vote in both states.

Trump defeated Clinton by a margin of 304 to 227 Electoral College votes despite losing the popular vote nationally by about three million votes.

The Washington electors wrote in the name of former U.S. secretary of state Colin Powell, while the Colorado elector opted for then-Ohio governor John Kasich. Both Powell and Kasich have been Republicans, though Powell endorsed Democrats Barack Obama and Clinton for president between 2008 and 2016.

The federal appeals court in Denver ruled that electors can vote as they please, rejecting arguments that they must choose the popular-vote winner. In Washington, the state Supreme Court upheld a $1,000 US fine against the three electors and rejected their claims.

In all, there were 10 faithless electors in 2016, including a fourth in Washington, a Democratic elector in Hawaii and two Republican electors in Texas. In addition, Democratic electors who said they would not vote for Clinton were replaced in Maine and Minnesota.

Electors in those cases selected the names of Vermont Senator Bernie Sanders, former congressman Ron Paul and Indigenous activist Faith Spotted Eagle for president.

The closest Electoral College margin in recent years was in 2000, when Republican George W. Bush received 271 votes to 266 for Democrat Al Gore. One elector from Washington, D.C., left her ballot blank.

The Supreme Court played a decisive role in that election, ending a recount in Florida, where Bush held a 537-vote margin out of six million ballots cast.

The justices scheduled separate arguments in the Washington and Colorado cases after Justice Sonia Sotomayor belatedly removed herself from the Colorado case because she knows one of the plaintiffs.

In asking the Supreme Court to rule that states can require electors to vote for the state winner, Colorado had urged the justices not to wait until "the heat of a close presidential election."

Reacting to the decision Monday, the lawyer for the electors who challenged the state rules said he's glad the court acted now.

"Obviously, we don't believe the Court has interpreted the Constitution correctly. But we are happy that we have achieved our primary objective — this uncertainty has been removed. That is progress," lawyer Lawrence Lessig said.

With files from CBC News and Reuters

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