‘Faithless Electors’ Lose High Court Battle Over 2016 Votes

In the 2016 election, Donald Trump had 304 votes from the Electoral College to Hillary Clinton’s 227 votes. Because of so-called faithless electors, there were three votes cast for Colin Powell. Bernie Sanders, Ron Paul, John Kasich and Faith Spotted Eagle split the remaining four votes.

WASHINGTON (CN) — The Supreme Court on Monday ruled against a handful of irregular Electoral College voters who in 2016 voted for a range of candidates of their own choosing, rather than their party’s nominee. 

The 10 so-called faithless electors voted for candidates ranging from former national security adviser Colin Powell and Faith Spotted Eagle, a member of the Yankton Sioux Nation who fought against the Dakota Access Pipeline.

The 10th Circuit sided with Colorado’s three rogue electors — Michael and Polly Baca and Robert Nemanich — while Washington state’s high court upheld fines of $1,000 each.

The Supreme Court agreed to hear the case in January and heard oral arguments in May via livestreamed teleconference. 

Justice Elena Kagan penned the high court’s unanimous decision, which rejected an argument from the Electoral College voters that America’s forefathers meant for an elector’s choice for president to be a matter of discretion.  

While Alexander Hamilton praised the Constitution with trusting elections to men making the choice “under circumstances favorable to deliberation,” it does not delegate presidential electoral powers to a relatively small group of individuals, Kagan wrote.

“The Framers did not reduce their thoughts about electors’ discretion to the printed page,” Kagan wrote. “All that they put down about the electors was what we have said: that the states would appoint them and that they would meet and cast ballots to send to the capitol. Those sparse instructions took no position on how independent from — or how faithful to — party and popular preferences the electors’ votes should be.”

She added: “On that score the Constitution left much to the future. And the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people’s decisions.”

Kagan, a Barack Obama appointee, also brushed aside the electors’ argument that 180 faithless votes had been cast for president or vice president since the nation’s founding, noting that is a small fraction of the over 23,000 total Electoral College votes cast in American history.  

Pledge laws requiring electors to vote with their state “reflects a tradition more than two centuries old,” the ruling states, affirming that “electors are not free agents” and can be held accountable if they are not loyal to voters’ choice for president. 

“Early in our history, states decided to tie electors to the presidential choices of others, whether legislatures or citizens,” Kagan wrote. “Among the devices states have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A state follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise…That direction accords with the Constitution — as well as the trust of a nation that here, We the People rule.”

The high court’s opinion came in the dispute out of Washington state, known as Chiafalo v. Washington. The justices noted in a separate single-page order that they reversed the 10th Circuit in the Colorado case for the reasons stated in the Chiafalo opinion. Justice Sonia Sotomayor did not participate in the Colorado decision because of a friendship with one of those electors, Polly Baca.

Jason Harrow, an Equal Citizens attorney who argued for the faithless electors in May, said in a statement Monday that while his clients don’t believe the court correctly interpreted the Constitution, he said it was good to know pledge laws are binding on electors this November. But these laws are not a cure-all, he said, and electors can still choose to cast their vote for anyone in 18 states.

“All of this means my colleagues and I will continue to do the hard work of making sure this upcoming election is free and fair and we’ll keep up our long term goal of finding ways that most people can agree would improve the way we select our president,” Harrow said.

Justice Clarence Thomas wrote a concurring opinion and was partially joined in his analysis by Justice Neil Gorsuch. Thomas concurred in judgment but disagreed with the majority that the Constitution gives states power over electors, writing instead that it is silent on the issue.

“When the Constitution is silent, authority resides with the states or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment,” he wrote.

Phil Weiser, Colorado’s Democratic attorney general who argued against the faithless electors in May, said in a statement Monday said high court’s “historic opinion” will ensure that they must follow state law.

“With this issue decided before the 2020 election, we can avoid uncertainty, chaos and confusion in the Electoral College and protect our nation’s democratic principles and system of stable governance,” Weiser said.

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