Paul M. Smith is vice president of litigation and strategy and Adav Noti is senior director of trial litigation and chief of staff at the Campaign Legal Center, which filed an amicus brief in support of the states in Chiafalo v. Washington and Colorado Department of State v. Baca.

The timing could not be worse.

Less than six months before a hotly contested presidential election, the Supreme Court is poised to decide in Chiafalo v. Washington and Colorado Department of State v. Baca whether a state can require its presidential electors to vote for the presidential candidate who wins the state’s popular vote.

The court, as is its wont, might decide that question by parsing how the Framers anticipated the Electoral College would operate. But there would be immediate real-world consequences of “unbinding” presidential electors – consequences that could throw the 2020 presidential election into chaos.

By way of background: When a citizen voting in a presidential election marks a ballot for a candidate, the citizen is not actually voting for that candidate; rather, the citizen is voting for the candidate’s preferred slate of presidential electors — the people who will gather in their state capital about six weeks after Election Day and officially cast the state’s electoral votes for president.

For generation after generation, the Electoral College voting process has been a mere formality. In all 50 states and the District of Columbia, presidential electors have been viewed as merely effectuating the will of the jurisdiction’s voters, casting their ballots for the winner of their state or district’s presidential election.

If the Supreme Court unbinds the electors, this will no longer be the case. Presidential electors will go from being mere functionaries to being completely free agents, legally permitted to vote for any candidate (or no candidate), subject only to the electors’ own judgment. They will be free to choose as president any natural-born citizen of sufficient age, regardless of who won — or even ran in — their home state’s popular election. And that unreviewable judgment will decide who serves as president of the United States.

In other words, these 538 people will be, for a short time, the most important elected officials in the nation.

With great power comes great temptation. Recognizing that elected officials wielding discretionary authority can be subject to undue influence and financial corruption, longstanding federal statutes restrict who can give money to people seeking elected office and the amounts of such donations, to limit opportunities for corruption and to prevent officeholders from abusing their power for their own gain. Other statutes require elected officeholders to publicly disclose information about how they finance their campaigns, from where they get their personal money and to whom they are indebted.

Here’s the scary part: Of the four most important federal anti-corruption laws, not one covers presidential electors.

First, the Federal Election Campaign Act — as strengthened in response to the extensive financial corruption of President Richard Nixon’s 1972 reelection campaign — caps contributions to federal candidates at $2,800 per contributor. FECA also requires campaign contributions of $200 or more to be publicly disclosed, and prohibits candidates from taking contributions from corporations.

FECA does not apply to presidential electors. The law governs “candidates” and “elections” – which are statutorily defined to cover presidential candidates and voting by the general public — but not presidential electors or their own voting process.

In other words, electors can accept unlimited amounts of money in connection with their official duties. And they don’t even need to tell anyone.

This statutory coverage gap has not historically been a problem because electors were mere placeholders without discretion, and therefore there has been no incentive to try to influence them financially. But if the Supreme Court unbinds the electors, the dynamic will immediately flip: The incentives to try to influence wavering electors by financial means will be astronomical, and there will be no legal barrier to giving them money toward that end.

Second, federal law strictly bans elected officials at any level — federal, state or local — from receiving election-related money from foreign sources. This sweeping prohibition seeks to address the centuries-old danger of foreign interests’ buying American elections — a danger so well-established that then-Judge Brett Kavanaugh, no friend to campaign finance regulation, ruled the prohibition constitutionally permissible (a ruling the Supreme Court affirmed).

This foreign-national ban does not apply to presidential electors. Like FECA’s contribution limits and disclosure requirements, the foreign-national ban reaches money given in connection with primary and general elections, but not voting by the Electoral College or its members. Thus, an unbound presidential elector could lawfully take unlimited money from foreign sources in connection with the elector’s official duties. The Russian government, or a Chinese espionage agent or a corporation owned by a hostile country could give millions of dollars to a presidential elector. And not only would this be permissible, neither the giver of the money nor the recipient would ever have to publicly disclose it.

Third, the Ethics in Government Act requires federal elected officials to publicly disclose their debts and assets. This mandatory reporting allows the public, journalists, watchdogs and law enforcement agencies to monitor officeholders’ actions for potential misconduct. For example, by knowing where a federal official gets their income, it is possible to detect and challenge that official when they take official actions that appear to benefit their own financial interests.

The Ethics in Government Act does not cover presidential electors. If an elector were to throw their vote to a candidate preferred by an entity that provides the elector’s income or holds the elector’s debt, such insidious influence would remain hidden from the public.

Finally, the backstop to all other anti-corruption laws is the criminal prohibition on bribery: the ban on “directly or indirectly, corruptly giv[ing], offer[ing] or promis[ing] anything of value to any public official … to influence any official act.” But the statutory definition of “public official” for purposes of bribery law does not appear to include presidential electors, so even this fundamental democratic protection is likely unavailable. (In any event, bribery law is a blunt instrument, and the grounds for bribery prosecutions have been significantly pared back for all actors.)

In sum, federal law is woefully unprepared for the presidential election to be decided by 538 free agents. The opportunities for undue influence and corruption in such a system would be vast, the stakes incredibly high and the legal framework nonexistent.

To be sure, the unbinding of the electors is unlikely to matter if the result of the presidential election is one-sided. Throughout history, most electors have been faithful to their states’ voters, even when not legally required to do so. So in an election in which the results show a sweeping nationwide consensus, it seems unlikely that financial or other incentives could change enough electors’ minds to affect the ultimate result. But if the election night results are close – like the 271-267 electoral vote tally in 2000 – and the next president of the United States could be selected by “flipping” one or two individuals, a staggering magnitude of financial and other pressure could be brought to bear on those people.

And what will the American people do if an election does flip? How will the side that prevailed on election night react if a presidential elector takes unlimited, undisclosed money from foreign and domestic sources and then votes against the will of the elector’s home state? The ramifications for the perceived legitimacy of American democracy — the thin thread on which our entire system of government rests — are too frightening to contemplate.

But the Supreme Court must contemplate these real-world effects before it rules. At a minimum, the court should adhere to its own admonition that “[c]ourt orders affecting elections … can themselves result in voter confusion and consequent incentive to remain away from the polls.” This principle of judicial modesty is generally applied in the context of rulings regarding the mechanics of voting, but its rationale — that voters may be confused or even opt out of voting entirely due to “fear their legitimate votes will be outweighed” — applies equally to unbinding the presidential electors just months before a presidential election. If voters believe their “legitimate votes” are irrelevant because the election will actually be decided later by individuals they have never heard of and certainly do not intend to vote for, the voters will feel — and will in fact be — disenfranchised.

If the court is inclined to unbind the electors, at a minimum it must give Congress a chance to update anti-corruption laws to cover the Electoral College. That cannot realistically happen between June and November — and certainly not in the midst of a worldwide catastrophe that is wreaking havoc on both lawmaking and election administration. This is why we filed an amicus brief urging the court to delay any ruling on this case until after the 2020 presidential election.

The legal structures that protect the transparency and validity of our democratic process are completely inadequate for a system in which the president of the United States is selected by a handful of free agents. Every believer in American democracy should hope that the Supreme Court does not decide to create such a system.

Posted in Colorado Department of State v. Baca, Chiafalo v. Washington, Featured, Symposium before oral argument in Chiafalo v. Washington and Colorado Department of State v. Baca

Recommended Citation: Adav Noti and Paul Smith, Symposium: Unbinding presidential electors could throw the 2020 election into chaos, SCOTUSblog (Apr. 23, 2020, 12:32 PM), https://www.scotusblog.com/2020/04/symposium-unbinding-presidential-electors-could-throw-the-2020-election-into-chaos/