Hamilton And Burr
In an opinion that made reference to the hit Broadway musical “Hamilton” and the HBO comedy “Veep,” Kagan said state efforts to control their electors date back to the 18th century.
“From the first, states sent them to the Electoral College -- as today Washington does -- to vote for preselected candidates, rather than to use their own judgment,” Kagan wrote. “And electors (or at any rate, almost all of them) rapidly settled into that non-discretionary role.”
The 12th Amendment was adopted after the election of 1800 resulted in an Electoral College tie between the two men on the Republican ticket that year, Thomas Jefferson and Aaron Burr. The tie sent the contest to the Federalist-controlled House, where Alexander Hamilton’s influence helped secure the election of Jefferson. Hamilton later died in a duel with Burr.
“Alexander Hamilton secured his place on the Broadway stage -- but possibly in the cemetery too -- by lobbying Federalists in the House to tip the election to Jefferson, whom he loathed but viewed as less of an existential threat to the Republic,” Kagan wrote.
Under the 12th Amendment, electors vote separately for president and vice president.
The electors in the Colorado and Washington cases argued unsuccessfully that the 12th Amendment provides detailed instruction on how the electoral vote proceeds, precluding state interference once the electors are appointed.
Thomas And Gorsuch
Kagan described the election of 1796 as “fodder for a new season of Veep,” because it made the Federalist John Adams president with his rival Jefferson as vice president.
The Supreme Court ruled in both the Washington and Colorado cases Monday.
Justice Sonia Sotomayor disqualified herself from the Colorado case because of her friendship with one of the electors in the case. Although the outcome was unanimous in both cases, Justice Clarence Thomas and Neil Gorsuch said they would have used different reasoning.
The Supreme Court ruled in 1952 that states could insist that electors pledge to support their party’s nominee, but the court had never said what, if any, enforcement steps states could take. Litigants on both sides of the issue had urged the justices to resolve the issue now to ensure it won’t arise in the middle of a disputed election.
Under the U.S. system, each state’s number of electors is equal to its representation in Congress -- two senators plus members of the House. Almost all states use a winner-take-all system, in which the candidate who wins the state’s popular vote is entitled to the full slate of electors. Two states, Nebraska and Maine, have systems that can produce a split electoral vote.
The cases are Chiafalo v. Washington, 19-465, and Colorado Department of State v. Baca, 19-518.
--With assistance from Gregory Korte.
This article was provided by Bloomberg News.