WASHINGTON (CN) — The U.S. Supreme Court forecast defeat Wednesday for a handful of rogue Electoral College voters who in 2016 backed the candidate of their conscience, rather than their party’s nominee.
Equal Citizens attorney Jason Harrow appeared to rankle the chief justice this morning as he argued that the electors are entitled to seemingly unlimited discretion.
“Your honor, there are no limits in that voting by ballot so long as the ballot is for a person,” Harrow said. “The 12th Amendment says they must vote for a person.”
“Not a giraffe?” replied Chief Justice John Roberts, his exasperation coming through in the teleconference. “I mean, of course they have to vote for a person.”
Harrow did not back down when Roberts pressed whether electors could make their vote by flipping a coin.
“Yes, your honor, that’s the same discretion that U.S. senators have, representatives have, congressional electors have,” Harrow said. “These too are elected officials and they have that same discretion.”
Refuting this, Washington Solicitor General Noah Purcell noted that the rules in his state for appointing electors included conditions, such as requiring an elector to live in the state he represents or show up in December when electors across the country meet in their respective state capitals to cast their votes.
Purcell said the only issue in dispute is if states can enforce this condition.
In an April amicus brief, the Republican National Committee advised that they can. Invoking Nietzsche, the RNC said rogue electors present themselves “as constitutional übermensch,” the superior man who refutes morality to impose his own values on the world, even though “elector defection has never changed the outcome of an election.”
Established by the U.S. Constitution, the Electoral College forms every four years, with 538 electors, to break down the outcome of each state’s popular vote. The election that saw President Donald Trump take office saw the highest number of so-called “faithless electors” in U.S. history, culminating with Washington state and Colorado prosecuting a few of those who went rogue.
While the 10th Circuit sided with Colorado’s three rogue electors — Micheal Baca, Polly Baca and Robert Nemanich — Washington state’s high court upheld state-imposed fines of $1,000 each against Peter Chiafalo and two other electors.
Like Purcell, Colorado Attorney General Philip Weiser warned the justices Wednesday that Americans could lose faith in the voting process if the justices back the theory that electors have discretion to cast their votes.
“Your honor, the chaos that could result from upholding the 10th Circuit’s ruling is one that could occasion a constitutional crisis,” Weiser said. “As was noted by my college from Washington, if states have no ability to remove bribed electors … the mere fact of bribing electors in an open enough way would knock out electors, would limit who could vote and ultimately could sway the outcome of a presidential election.”
Lawrence Lessig, an attorney with the group Equal Citizens, conceded that electors exercising discretion does have far-reach consequences, but he said chaos is always a possibility in elections, especially as they relate to the 20th Amendment and contingencies for the death of a candidate.
“We suggest that the likelihood of that is tiny given that it requires electors who are the loyal of the loyal to band together in dozens, or three dozen in the last election and flip sides and of course, the likelihood of that is extremely small,” Lessig said.
Colorado Secretary of State Jena Griswold said in a statement Wednesday that the arguments highlighted the necessity for Americans’ individual right to vote.
“Without the ability to enforce state law, presidential electors could willingly disenfranchise millions of American voters or be bribed for their electoral vote,” she said. “We hope that the Supreme Court will protect American voters, state law and our elections with its decision.”
The Department of Justice did not immediately respond to a request for comment Wednesday.
Justice Sonya Sotomayor did not participate in the back-to-back arguments, having disclosed in March that her impartiality could be called into question due to her personal friendship with one of the electors, Baca.