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Argument analysis: In a close case, concerns about chaos from “faithless electors”

This morning the Supreme Court heard oral argument in a pair of challenges to the constitutionality of so-called “faithless elector” laws – state laws that penalize or remove a presidential elector who does not vote for the candidate he has pledged to support. Six presidential electors, who hail from Washington and Colorado, argue that the Founding Fathers didn’t want electors, who are part of the Electoral College that meets to formally elect the president after voters cast their ballots, simply to rubber-stamp the popular vote. Instead, the electors argue, the Constitution gives them the right to make their own decisions. The states say that they have the right both to appoint and to control their electors; allowing the electors to function as free agents, they contend, could lead to chaos in presidential elections. After over two hours of debate today, the justices seemed to regard the issue as a close one, but it appeared that concerns about the possibility of such chaos could tip the balance in favor of the states.

The “faithless elector” question came before the justices in two different disputes, which were argued separately. In Washington, Bret Chiafalo, Levi Guerra and Esther John served as electors for the state’s Democratic Party during the 2016 presidential election. They had pledged to vote for the candidate who won the popular vote there, Hillary Clinton, and were fined $1,000 each after they wrote in votes for former general and Secretary of State Colin Powell instead. In Colorado, state officials removed Micheal Baca from his position as an elector the Democratic Party after he tried to write in Republican John Kasich’s name instead of Clinton’s; two other Colorado electors, Polly Baca and Robert Nemanich, had wanted to vote for someone other than Clinton but ultimately cast their ballots for Clinton.

Arguing for the Washington electors, Harvard law professor Lawrence Lessig described the question before the court as “straightforward: Do the states have the power to control through law how an elector may vote?” The answer, Lessig explained, is no. Washington, Lessig continued, is asking the justices to interpret the word “elector” in the Constitution as “agent” or even “minion.” But although the Constitution gives the states the power to appoint electors, electors have discretion to vote as they wish. And the justices don’t get to decide which plan is a better one for presidential elections, Lessig emphasized; the question is what the Constitution requires.

Jason Harrow argued on behalf of the Colorado electors in the second case, in which Justice Sonia Sotomayor did not participate because she is a friend of one of the electors. Like Lessig, Harrow emphasized that the Framers wanted electors to have discretion to cast their votes for the candidate who they think would be best, even if that isn’t the candidate they originally pledged to support. The states, Harrow suggested, want to abolish the Electoral College, and he conceded that the U.S. election system may be better off without it. But until the Constitution is amended, Harrow concluded, we have electors, who do have discretion.

Lessig and Harrow fielded a variety of questions from the justices about whether the states have ever had any power to remove electors. The advocates drew a line between the appointment of the electors and the votes that the electors cast for president. In their view, states can regulate the former – requiring, for example, electors to be permanent residents of the state and allowing the states to remove them if they move out of state before the Electoral College vote – but cannot regulate the electors’ votes in any way. A few justices, including Justice Samuel Alito, were troubled by the idea that under such a rule, a state could not remove an elector who was bribed after the popular vote but before casting a vote in the Electoral College unless the elector had been convicted of bribery.

Other justices, such as Justice Elena Kagan, suggested that the text of the Constitution might not resolve the problem before the court. And if it didn’t, she continued, regardless of whether the Founding Fathers might have wanted electors to be “free agents,” the historical practice since the period shortly after the ratification of the Constitution was that electors pledged to follow the popular vote.

In response to a similar question about historical practice from Justice Brett Kavanaugh, Harrow pushed back, pointing the justices to what he described as a line of constitutional amendments to eliminate elector discretion. The amendments “would be a lot of wasted oxygen” if elector discretion didn’t exist in the first place, Harrow stressed.

Alito and Kavanaugh repeatedly worried aloud about the possibility that electors would break their pledge and vote as “free agents,” leading to chaos. Alito told Harrow that the court’s job is to “interpret the Constitution to mean what it means, regardless of the consequences.” But, Alito continued, experts say that chaos could result if, after an election in which one candidate won by only a small margin, there were an effort to influence electors and swing the election to another candidate. Do you really deny, Alito asked, that this is where your argument would lead?

Harrow and Lessig both conceded that such a scenario could occur, but they urged the court to look at history. The likelihood is low, Lessig reassured the justices, and the people who are chosen to serve as electors are generally chosen precisely because they are loyal party members. “The center has always held,” Harrow added.

Kavanaugh echoed Alito’s concerns about the ramifications of a ruling in favor of the electors, proffering that in a close case, judges should err on the side that avoids chaos. Kavanaugh acknowledged that “faithless electors” have not yet swayed the outcome of a presidential election. “But we have to look forward,” he added. Moreover, he observed, these cases aren’t only about a conflict between the states and the electors. Wouldn’t your position, Kavanaugh asked Lessig, potentially disenfranchise voters in the states with faithless electors?

Representing Washington, the state’s solicitor general, Noah Purcell, told the court that the Constitution indisputably gives the states the power to appoint electors, which includes the power to set the conditions for their appointment. The only question before the justices today, he suggested, is whether the states can enforce those conditions.

Colorado’s attorney general, Philip Weiser, argued that states can treat electors as “free agents” if they want to. But on the other hand, he contended, the Constitution permits states to regulate electors, which includes the power to remove an elector who has been bribed, “engages in a rebellion” or pulls a “bait and switch” when the time comes to cast a ballot.

Like Lessig and Harrow, Purcell and Weiser drew questions about the limits on their position. Chief Justice John Roberts pressed them both to explain when states might not be able to remove or replace electors. Weiser explained that some limits come from elsewhere in the Constitution; the state can’t remove an elector based on her race or religion, for example.

Kagan asked Purcell to point to the part of the Constitution that best supports the state’s argument. When Purcell responded that the Constitution does not impose any limits on the states’ power to place conditions on the electors, Kagan shot back, “You don’t have an affirmative textual argument.” Purcell insisted that it is the electors’ job to show that the states don’t have the authority to impose and enforce conditions, rather than the states’ burden to show that they do.

In questions for Weiser, Kavanaugh posited that, if anything, the text of the Constitution might support the electors. What, he asked, is the purpose of having the electors and a detailed scheme if not to make them “free agents”? Weiser reiterated that the Constitution gives the states a choice: electors can act as proxy voters on behalf of the public, or they can be “free agents.” But Kavanaugh was unsatisfied. If that was what the Founding Fathers wanted, he asked, why didn’t they just leave it to the states instead of including a host of details about how the plan is supposed to operate?

Kagan, Sotomayor and Roberts all questioned the states’ argument that the states’ power to appoint electors also translates into a power to remove them. That may be true for most federal officials, when you are talking about removing an official in a subordinate position, Roberts told Weiser, but the electors here are not subordinate to the legislature.

Sotomayor made a similar point to Purcell. Here, she said, the state is appointing an elector to do something that most people think of as requiring judgment: giving her the power to cast a ballot. The Framers of the Constitution called the position an elector, rather than a delegate. How can a tradition within the executive branch, Sotomayor asked, be controlling here?

Justice Ruth Bader Ginsburg seemed less persuaded that chaos would ensue if the court were to rule for the electors. What, she asked Weiser, are the practical consequences of a ruling against the states? Most states already require elector pledges, she observed, and over the course of U.S. history “faithless” voting has been rare. How much difference does it actually make?

Weiser repeated his warning that a ruling for the electors could lead to chaos and a “constitutional” crisis.” By contrast, toward the end of his argument time, Harrow reminded the justices that the “sky hasn’t fallen” under the current system. The court’s decision, which is expected by summer, could hinge on whether a majority of justices believe that, as Kavanaugh suggested, it is important to avoid the potential for chaos even if the sky hasn’t yet fallen.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Argument analysis: In a close case, concerns about chaos from “faithless electors”, SCOTUSblog (May. 13, 2020, 3:56 PM),