The U.S. Supreme Court said states can require members of the Electoral College to vote for the presidential candidate who won the statewide balloting in decisions that add a dose of predictability to the country’s complex election system.
The two unanimous rulings Monday alleviate a potential source of controversy heading into what could be a tumultuous November vote on President Donald Trump’s re-election bid. The court rejected contentions that the Constitution gives presidential electors the right to vote as they please no matter who won the state’s popular vote.
The Constitution and its 12th Amendment “give states broad power over electors, and give electors themselves no rights,” Justice Elena Kagan wrote for the court in a case from Washington state.
Electors are party members who are appointed to the Electoral College if their side’s candidate wins, and the broad expectation has long been that they will support that candidate. But in 2016, 10 “faithless electors” voted, or tried to vote, for someone other than Trump or Hillary Clinton. Only nine electors had voted for someone other than their party’s candidate from 1900 to 2012.
About 30 states attempt to bind electors to the winning candidate, though some of those states don’t penalize people who cast deviant votes.
Lower courts had been divided on whether states can enforce a requirement that electors vote for the state’s top vote-getter.
A federal appeals court ruled that Colorado violated the Constitution when it removed Michael Baca as an elector and canceled his vote. Baca, a Democratic elector, had voted for Republican John Kasich instead of Clinton, who won the statewide vote.
Risk For Trump
The Washington Supreme Court, however, upheld $1,000 fines imposed on three people who voted for former Secretary of State Colin Powell instead of Clinton. Washington changed its law last year so that electors would be removed, rather than fined, and their votes canceled, much like in Colorado.
Eight of the 10 faithless electors in 2016 were bound to Clinton. The group was aiming to encourage Trump electors to follow suit and deprive him of an Electoral College victory.
The Supreme Court’s decision makes similar scenarios less likely in the future, but not impossible. Although the court said states can penalize electors who fail to follow their pledges, it’s still up to the state legislature to decide how much discretion electors have.
Only 15 states impose some kind of penalty on faithless electors who break their pledges. Other states have no penalty, and some simply replace electors who fail to follow their pledges with those who will.
Faithless electors in 2020 may pose more of a risk to Trump than to Democrat Joe Biden. States that let electors change their votes went overwhelmingly for Trump in 2016, 154 electoral votes to 81.