The Supreme Court has agreed to hear two cases presenting the issue of whether Electoral College electors can be bound by state law to vote consistent with the state popular vote winner. The concept of electors voting as the voters in their states voted is central to the viability of the Electoral College.

An argument can be made that the Electoral College favors Democrats and liberals, because they almost automatically win big states like California, New York and Illinois — so they start with a built-in Electoral College lead. It doesn’t always work that way, however, and 2016 was an example. Trump barely won states that usually easily got to Democrats, like Michigan, Pennsylvania and Wisconsin. Hillary won the national popular vote, but lost the Electoral College count by a landslide, leading to the mental and societal breakdown of Democrats, who now want to discard the Electoral College by any means possible.

In 2016, some Democrats resorted to trying to intimidate electors into changing their vote and going “faithless.” That attempt to undermine the Electoral College by intimidation was a pivotal moment for The Resistance, a sign that anything goes to get rid of Trump. I wrote on December 12, 2016, The one thing you must understand about the unfolding media-Democrat Electoral College coup attempt:

We are witnessing nothing short of an attempt to steal the election by some Democrats and a very supportive mainstream and leftwing media, by causing Electors in the Electoral College to go rogue and vote for Hillary, or at least not vote for Trump.

Legal support for rogue electors was promised by Laurence Tribe, the Harvard Law School professor who has gone off the rails with Trump Derangement.

https://twitter.com/tribelaw/status/799448083071455233

Tribe also has been leading the legal fight against efforts by states to enforce rules against faithless electors as part of this project. And now the Supreme Court will take up the issue.

In Chiafalo v. Washington, the following questions are presented:

QUESTION PRESENTED:

A Washington State law threatens a fine for presidential electors who vote contrary to how the law directs. RCW 29A.56.340 (2016). Petitioners are three 2016 presidential electors who were fined under this provision solely because they failed to vote as the law directs, namely for the presidential and vice presidential candidates who won a majority of the popular vote in the State.

The question presented is whether enforcement of this law is unconstitutional because:

(1) a State has no power to legally enforce how a presidential elector casts his or1 her ballot;
and

(2) a State penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.

The case has been consolidated for argument with Colorado v. Baca, which presents the following questions:

QUESTION PRESENTED:

Like most States, Colorado requires its presidential electors to follow the will of its voters when casting their Electoral College ballots for President. In the 2016 Electoral College, one of Colorado’s electors violated Colorado law by attempting to cast his presidential ballot for a candidate other than the one he pledged to vote for. Colorado removed him as an elector, declined to accept his ballot, and replaced him with an alternate elector who properly cast her ballot for the winner of the State’s popular vote, consistent with Colorado law. The removed elector later sued Colorado for nominal damages.

The questions presented are:

1. Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.

2. Does Article II or the Twelfth Amendment forbid a State from requiring its presidential electors to follow the State’s popular vote when casting their Electoral College ballots.

I don’t know enough about the legal issues to opine — I have some reading up to do.

But the politics are clear. This may be the single most important case this year. If the Supreme Court rules that electors can be faithless, then there is going to be mayhem in 2020 when Trump wins again. Those who sought to intimdate and bully electors in 2016 were largely viewed as being out of bounds.

But if given a legal green light, there’s no telling how much damage could be done to the stability of the nation if the electoral counts is close and bullying a small number of electors to go faithless swings the Electoral College to Democrats.

 

 
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