On May 13, the US Supreme Court hears debate in two strange and disconcerting cases about so-called “faithless electors.”
These rogue voters are members of the electoral college who cast independent ballots rather than going with their state’s chosen presidential candidate because they claim the Constitution gives them this power. Reading the electors’ arguments, you might marvel at the fact that there hasn’t been more trouble with these unreliable voters historically.
Indeed, it seems a miracle that any electoral college voter does as told, frankly, and that elections haven’t been more chaotic. Yet they have not been, despite the fact that faithless electors have always existed and have throughout US history objected to directives to vote as told.
Of about 23,000 individual electoral college votes in more than two centuries, only 165 have been “nonconforming.” The most recent of these rogue votes arose during the 2016 election when electors out of Colorado and Washington wanted to exercise independent discretion. They say they were unjustly punished for failing to tow the line.
An outdated symbol?
There are 538 electoral college voters from 50 states nationwide who meet six weeks after the presidential election to cast ballots for their states. The electoral college system was created because in the late 18th century when the US became a nation communication was slow. This method ensured a certain efficiency to elections, guaranteeing results within weeks. It was also something of a compromise deal struck between those who wanted Congress to choose the president and those who believed the people should decide.
Now, of course, communication is fast. So gathering six weeks after an election to transmit state votes arguably serves no legitimate purpose. This is all the more true considering that winning the popular vote doesn’t guarantee winning the presidency, depending on how many electoral college votes a candidate secures. For example, in 2016, Hillary Clinton won the popular vote but Donald Trump became the president.
Electoral college voters are chosen by the party whose presidential candidate wins the popular vote in a state. They normally cast their ballots for that candidate.
These electors aren’t chosen for their wit, wisdom, or erudition, according to states, and they don’t get to choose their vote. They are just folks in the winning party who happen to exist to manifest the will of the people. This is evidenced by the fact that electoral college voters’ ballots don’t even disclose the voters’ names.
However, some electoral college voters don’t follow instructions and say they cannot be told how to vote. Sure, the state has the right to choose the voters and authorities can suggest a desired vote. But it would be senseless, say the electors, to expect them to choose as told because that defies the meaning of the word “vote” and the role that the framers of the Constitution envisioned for electoral college voters.
The electors point to Federalist 68, an essay in the Federalist Papers in which Alexander Hamilton explained that the electoral college would hold men of “information and discernment” to safeguard the nation’s highest office. “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications,” Hamilton wrote. Thus, it’s the responsibility of independent voters to stand up for the presidency should it fall into the wrong hands, the rogue voters argue.
States, however, counter that this is just one founding father’s opinion and doesn’t tell us how the electoral college really works. States must be able to dictate how an electoral college voter casts their ballot, they say—otherwise, a few bad apples could theoretically hijack a presidential election.
Now the high court must decide who is right, the rogue voters or the states. With a presidential election just around the corner, the justices’ decision could promptly become consequential.
Rogue and wannabe rebel voters in two states present the court with the same question about exercising independent judgment. But their cases vary in the details.
In Washington, three electoral college voters cast ballots for Colin Powell for president, although he wasn’t a candidate in 2016. As the electors’ brief explains:
The Presidential Electors in these cases determined to vote for a candidate other than the nominee of their party. Each believed that their vote, if joined by others across the nation, could move the election to the House of Representatives, and give the House a chance to select a President closer to the preferences of voters in their states than the presumptive winner, Donald Trump.
Washington state transmitted these votes to Congress, and they became part of the official tally. But the state then fined the electors $1,000 each for failing to vote for the nominee of their party, and the rogue voters challenged their punishment as unconstitutional.
In Colorado, meanwhile, electoral college voter Michael Baca had crossed out Hillary Clinton’s name on a pre-printed ballot with only one choice—Clinton. Baca wrote in his vote for John Kasich for president instead. His vote was rejected and the state removed him as an elector, replacing him with a substitute elector who cast a vote for Clinton. Two other voters, who had indicated they would vote their own way previously, ended up casting their ballots for Clinton.
Baca claims that he was unjustly punished because he was replaced as a voter and was threatened with possible charges by the state. But Colorado says he has no standing to sue because he experienced no actual harm.
In both cases before the high court, the faithless electors claim they were exercising their constitutional rights and that choice is inherent in such votes. They want the court to declare that electoral college voters have a “right of choice” that cannot legally be controlled by states.
The faithless electors point out that Article II of the Constitution “vests in electors the choice for President and Vice President.” Based on their reading of the law and dictionaries of the 18th century, an elector necessarily had a choice. In their view, the electoral college voter cannot exist for purely symbolic reasons—that doesn’t make linguistic sense and is unsupported by the Framers’ interpretations of the voters’ role.
Meanwhile, states say there is no way that any electoral college voter can cast a ballot for whomever they choose. History, the states say, is on their side, and they want the high court to decide that electoral college voters play a purely symbolic role and have no personal agency. Deciding anything else is essentially throwing presidential elections to the wind, or more specifically, to a bunch of unreliable nobodies.
Notably, the two cases were initially consolidated for oral argument before the high court until it was discovered that justice Sonia Sotomayor is friends with one of the wannabe faithless electors of Colorado, Polly Baca. Although Baca ultimately cast a ballot for Clinton—not scratching out the candidate’s name like Michael Baca, who is unrelated to her—she had expressed a desire to vote independently. Sotomayor recused herself from that case but will participate in the Washington matter.
The justices are expected to decide these cases by term’s end in late June. If they choose to see things the electors’ way, finding they were wrongly punished for exercising their judgment, it may well mean a chaotic 2020 presidential election ahead, leaving rogue electoral college voters more emboldened to rebel.