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Supreme Court unanimously upholds states’ right to penalize Faithless Electors

Supreme Court unanimously upholds states’ right to penalize Faithless Electors

“Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so.”

https://www.supremecourt.gov/about/justices.aspx

The Supreme Court has ruled in a case involving whether states may require that Electors of the Electoral College vote in accordance with the popular vote in the state.

The case is Chiafalo v. Washington:

Issue: Whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.

Consolidated with Colorado Department of State v. Baca:

Issues: (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; and (2) whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots.

The Opinion was just rendered in Chiafalo, upholding states’ right to control faithless electors, with Kagan writing the opinion.

Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President.

The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge in advance to support the nominee of that party. This Court upheld such a pledge requirement decades ago, rejecting the argument that the Constitution “demands absolute freedom for the elector to vote his own choice.” Ray v. Blair, 343 U. S. 214, 228 (1952).

Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so.

The Baca case was vacated and remanded for consideration in light of the Chiafalo decision.

Justice Thomas, joined by Gorsuch, wrote a separate opinion concurring in the judgment, but on different grounds:

The Court correctly determines that States have the power to require Presidential electors to vote for the candidate chosen by the people of the State. I disagree, however, with its attempt to base that power on Article II. In my view, the Constitution is silent on States’ authority to bind electors in voting. I would resolve this case by simply recognizing that “[a]ll powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 848 (1995) (THOMAS, J., dissenting).

The Kagan opinion notes:

As of now, 32 States and the District of Columbia have such statutes on their books. They are typically called pledge laws because most demand that electors take a formal oath or pledge to cast their ballot for their party’s presidential (and vice presidential) candidate. Others merely impose that duty by law. Either way, the statutes work to ensure that the electors vote for the candidate who got the most statewide votes in the presidential election…

Washington is one of the 15 States with a sanctions-backed pledge law designed to keep the State’s electors in line with its voting citizens…. And the elector must comply with that pledge, or else face a sanction. At the time relevant here, the punishment was a civil fine of up to $1,000. See §29A.56.340 (2016).

I’m not sure this decision solves the problem we saw in 2016, which was an attempt by Democrats to bully electors into not honoring the state popular vote in an attempt to deprive Trump of an electoral college majority. If all a state imposes is a fine, there are plenty of Democrat groups who would gladly pay that fine for a faithless elector.

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Comments

Thomas cites the 10th amendment

Thomas is the smartest justice. I don’t even think it’s close. There’s hope for Gorsuch though.

    stl in reply to Barry. | July 6, 2020 at 2:18 pm

    It was also said that Scalia tended to follow his opinions. Imagine that, the only black jurist, who survived democrat assault in the Senate, is actually considered the most conservative judge by conservatives. We are such racists…lol.

      Joe-dallas in reply to stl. | July 6, 2020 at 2:59 pm

      He has a stronger following of his former clerks that even Scalia. His former clerks speak extremely highly of Thomas.

    buckeyeminuteman in reply to Barry. | July 7, 2020 at 12:08 am

    Didn’t Gorsuch just decide that the 1964 civil rights law applies to transgenders, even though that wasn’t even a vice at that time? I don’t think Gorsuch thought that one through very well.

This decision can be seen as throwing cold water on the proposed interstate popular vote compact, requiring participating states to throw their electoral votes to the winner of the national popular vote. Both Kagan’s majority opinion (see footnote 4) and Thomas’ dissent (near the end) acknowledge that a state’s ability to control how their electors vote is constrained by other constitutional demands. So, as Kagan points out, the Art. II language nominally giving states the right to select electors in any manner they choose is still subject to the Equal Protection Clause. If so, then it’s hard to see how the compact could survive, where it deprives the voters (or legislators, etc.) of a given state of virtually ANY say in how that state’s electoral votes are cast.

    Dusty Pitts in reply to Scrape. | July 6, 2020 at 11:37 am

    I wish. It states MAY require Electors to vote for the candidates who won the popular vote in that state.

    If the state doesn’t so require, the ruling has no bearing on Electors in that state.

    The ruling can in fact be interpreted as allowing states to impose an alternate requirement, such as NPV.

      A fine? That’s it?

      It’s a Pyrrhic victory.

      Scrape in reply to Dusty Pitts. | July 6, 2020 at 12:16 pm

      The NPV people are claiming states have unfettered power under Art. II to decide how their states cast their electoral votes. Today’s decision point’s out that the cited power is NOT unfettered: i.e., states can’t exercise their power to dictate how electors are chosen in a way that is otherwise unconstitutional, such as a violation of equal protection. (For example, they couldn’t say that the electors could only vote for a woman.) The fact that states do not actually have carte blanche under Art. II over the selection of electors is really bad for the NPV, because it would be hard to argue that depriving the voters (directly, or through the legislature) of ANY meaningful say in the decision of which candidate receives that state’s EVs is not a deprivation of constitutional rights. The NPV literally disenfranchises entire state populations in terms of presidential elections; is that not a fairly obvious violation of the constitution? And even the dissent, which takes a 10th amendment approach to the faithless elector issue, seems to agree on this particular point.

        Milhouse in reply to Scrape. | July 6, 2020 at 11:50 pm

        he fact that states do not actually have carte blanche under Art. II over the selection of electors is really bad for the NPV, because it would be hard to argue that depriving the voters (directly, or through the legislature) of ANY meaningful say in the decision of which candidate receives that state’s EVs is not a deprivation of constitutional rights.

        This is not correct. Of what right would it deprive anyone? There is no constitutional right to any say at all, let alone a meaningful say, in a presidential election. The state legislature can decide not to hold an election at all, if it likes. Or it can decide to order the electors to vote for the Democrat candidate regardless of how the election comes out.

      petefrt in reply to Dusty Pitts. | July 7, 2020 at 8:17 am

      That’s the way I read it also. Note that this interpretation would explain why the lib justices voted for it.

      Very troubling, to say the least.

    Dusty Pitts in reply to Scrape. | July 6, 2020 at 11:40 am

    I hate that I’m reading it the way I described above, and I hope you’re closer to right thsn I am, but you know NPV proponents will read it that way.

    Milhouse in reply to Scrape. | July 6, 2020 at 12:07 pm

    On the contrary, this terrible decision makes that compact more likely to happen, precisely because it gives the state legislatures the right to direct its electors how to vote. There is no right of the people of a state to any say whatsoever over the election of a president. They have only such right as the state legislature chooses to give them. Since the state legislature can decide to give you no say at all, and to simply appoint the state’s electors, a fortiori it can decide to limit your say to one in 100 million. But before this decision it couldn’t enforce that decision; now it can.

      UserP in reply to Milhouse. | July 6, 2020 at 12:19 pm

      Who picks the state legislatures?

        barnesto in reply to UserP. | July 6, 2020 at 12:50 pm

        Here in California, the state chooses the legislature. Between mail-in voting and ballot harvesting, GOP lost 7 districts in Orange County in 2018. It was a perennial GOP enclave. One of the last in highly populated areas of the state.

        The state also controls what and who goes on the ballot. Top two voting means you rarely, if ever, see a Republican on the ballot. They’ve segmented primary voting such that you could call it GOP suppression. They have been many districts that don’t even run a GOP candidate for those reasons. Until this year, we have over 20 women running for positions that didn’t have a GOP candidate – good on them and give them your support.

        As for petitions to get anything on the ballot, our “outstanding” Secretary of State, Alex Padilla, has made the process so onerous as to thwart any initiative they don’t like – see the two recall initiatives that failed prior to COVID. Onerous I say? Yes, onerous. If you don’t spell out words like street or avenue, the signature is tossed. Write outside of a margin? Toss it in the garbage. Then they play games like not publishing signature tallies to keep groups in the dark on their progress and to obfuscate their cheating.

        So yeah, who does pick state legislature? It’s not We The People in California. Your state’s mileage may vary.

      gospace in reply to Milhouse. | July 6, 2020 at 10:07 pm

      What? The 14th and 24th Amendments were never ratified?

      Article 2 has been modified by the 14th and 24th.
      14th: . But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. How can the state take away the right to vote for electors if such a right doesn’t exist?

      The 24th: Section 1
      The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.
      Again: How can the state take away the right to vote for electors if such a right doesn’t exist?

      Sometime between the adoption of the Constitution and the passage of the 14th amendment, it became recognized that the people would choose the electors. The 14th and 24th codify that right. The people of a STATE choose the electors, not the people of another state. It can be done district by district, as ME and NE do it, or by statewide popular vote as the other 48 do.

      The amendment governing DC’s elector selection is very specifi- the 14th and 24th don’t apply there, it’s not a state:
      Amendment XXIII
      Section 1.
      The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

      A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. I have no clue as to how to look up how Congress has directed that DC select it’s electors. But it’s up to Congress to make the rules.None of the articles I’ve found give a clue.

        Milhouse in reply to gospace. | July 6, 2020 at 11:59 pm

        Neither the 14th nor the 24th amendment create a right to vote in a presidential election.

        The 14th in fact recognized that a state could deny black people the vote in presidential elections; that’s why it created a penalty for states that did so. But I think you meant to refer to the 15th, which outright banned them from doing so, so let’s start over with that.

        Neither the 15th nor the 24th amendment create a right to vote in a presidential election. Nor do the 19th and 26th. They all merely say that should a state choose to grant its citizens such a right, it may not restrict that right by race, color, sex, age over 18, having once been a slave, or owing taxes. It can impose other restrictions as it likes, or not grant such a right in the first place.

          gospace in reply to Milhouse. | July 7, 2020 at 1:07 am

          Explain how the words don’t say what they say. “But when the right to vote at any election for the choice of electors for President and Vice President of the United States, ” The right to vote means- to anyone who reads it, even lawyers and legal experts like yourself, the right to vote. Either that, or the Constitution is meaningless.
          Nowhere does it say “Should a state choose to let people vote”, it says “The right to vote”- the right being assumed.

          It cannot be taken away if it doesn’t exist.

          Milhouse in reply to Milhouse. | July 7, 2020 at 2:15 am

          It is very simple, you are just refusing to accept it. Of course a right to vote exists — if the state legislature chooses to grant it. If you’re in a state where the legislature did not choose to grant such a right, then it does not exist.

          It’s just like any other right that a government may choose to grant its citizens; it can put whatever terms it likes on that right, or abolish it altogether, except when the constitution says otherwise.

          The 14th amendment explicitly recognized that states could deny black people the right to vote. So how can you cite it as proof that they couldn’t? It wasn’t till the 15th amendment that they were prohibited from restricting the right in that particular way (but could still restrict it in any other way).

    Joe-dallas in reply to Scrape. | July 6, 2020 at 12:55 pm

    Thomas was not in dissent, he wrote an opinion concurring in judgement joined by Gorsuch based on 10A

SCOTUS rules unanimously that states can punish faithless electors who decide to show up for the Electoral College vote and cast their ballots against the way their states voted.

Hmm

Absent a return to direct election of the presidential electors, this decision is as good as can be hoped for.

Personally, I would prefer to see the electoral college modified so that the winner of each state receives two electoral votes (representing Senate allocation) to be cast for the state wide winner and the winner of each congressional district to receive that electoral vote.

This proposal would have the effect of forcing competition on a more widespread basis and eliminates the to a degree the structural advantages of the parties in large states; d get CA while r get TX.

I believe this proposal would go a long way towards blinking the national popular vote movement and would increase turnout in the large states under one party control which would further blunt the national popular vote movement.

How many r voters stay home in CA or N.Y. because their vote at the state level is inconsequential? How many more votes would be cast if the presidential race was determined by congressional district? IMO, many voters who stay home under the current system would come to the polls.

Even if not adopted the logic of the national popular vote doesn’t make sense in terms of raw votes. Disaffected and discouraged r voters in CA and N.Y. etc under a national popular vote regime would now have incentives to vote. Be careful what you wish for.

It seems a weak issue over all. It is too bad that the issue of awarding a state’s electors based on the National popular vote isn’t addressed in this, as that seems unConstitutional to me, given they are not putting in electors who represent their state, necessarily, but could be representing the voting of a combination of other states.

That is truly troubling as it can effectively nullify the votes from those states. Talk about disenfranchising the voters from your state.

    Joe-dallas in reply to oldgoat36. | July 6, 2020 at 12:58 pm

    Indirectly, the court gave guidance on how to address the issue of awarding the state elector’s votes to the winner of the national popular vote. It would be up to the state legislatures to enact such a provision.

    Milhouse in reply to oldgoat36. | July 6, 2020 at 2:41 pm

    It’s not at all unconstitutional. The legislature decides how the electors shall be chosen. It could decide that the electors shall be appointed by the DNC, and that would be constitutionally valid.

    The big defense against that in the past has been that once chosen the electors can do whatever they like. Now that is gone. This is a bad decision.

      ss396 in reply to Milhouse. | July 7, 2020 at 10:42 am

      The problem with the NPV is not a matter of the legislatures determining how to award the States’ electoral votes.

      One problem is its driver that it will become effective when there are 270 electoral votes committed under it. It’s the “we’ll do it if you’ll do it” nature of the NPV that makes it a compact and therefore unconstitutional.

      A bigger problem is the vote dilution that it forces; that the States’ votes are not cast singly, but are diluted to the results of some (currently) 65-million other votes, votes which are cast in political entities and divisions under which I am not a member. The States are independent nations, after all, and I am a resident of a single municipality within a single county within a single State. I cannot be a citizen of two States at the same time; I cannot vote in two separate municipalities at the same time.

      The only way my vote would not be diluted under this popular vote thing would be if the entire United States decided to go to electing the President by popular vote. Anything short of that is voter dilution and illegal.

        Milhouse in reply to ss396. | July 7, 2020 at 11:46 am

        One problem is its driver that it will become effective when there are 270 electoral votes committed under it. It’s the “we’ll do it if you’ll do it” nature of the NPV that makes it a compact and therefore unconstitutional.

        Interstate compacts only require congressional approval if they enhance the power of the contracting states at the expense of Congress’s power. Compacts which don’t do this are none of Congress’s business, and therefore do not require its approval. Or at least so said the Supreme Court, in 1893.

        A bigger problem is the vote dilution that it forces; that the States’ votes are not cast singly, but are diluted to the results of some (currently) 65-million other votes, votes which are cast in political entities and divisions under which I am not a member. […] is voter dilution and illegal.

        This is not a constitutional problem. It is not illegal. You have no right to vote at all in presidential elections, unless your state legislature decides to grant you such a right; therefore it may restrict that right, or dilute that vote, in any way it likes except those specifically prohibited by the constitution. This isn’t one of them.

        Until this decision the NPV wasn’t something I worried about. I assumed that even if it ever got the numbers to come into effect, it would break up the first time it was tested. But now that states will have the power to enforce it, I’m starting to worry. Because constitutional or not, it’s a really bad idea.

          Scrape in reply to Milhouse. | July 7, 2020 at 4:10 pm

          I don’t understand your contention that people have no right to vote for president unless their state legislatures grant such a right. The state legislatures — all 50 of them — HAVE provided for their citizens to vote for president. So literally every age 18+ citizen of the U.S. (except only D.C. residents, felons, etc.) have that right. Now, if your argument is that the state legislatures of the Compact states can all simply vote to take away the popular vote from their citizens, and give it back the state legislatures, so that the COMPACT will not have resulted in the loss of anybody’s right to vote, then what happens? Here’s what: the “national popular vote” will necessarily NOT INCLUDE any votes from the 10 or so participating Compact states, all of which are blue states that no Dem can possibly win without. So, in that scenario, the Republican candidate wins the “national popular vote” and, if the Compact is in effect and deemed enforceable, the Republican wins all 50 states.

          Milhouse in reply to Milhouse. | July 7, 2020 at 6:46 pm

          I mean that there is no constitutional right to vote for president; the right that we all enjoy now is simply a grant from our respective state legislatures, which they can withdraw or alter. Therefore ss396’s argument is incorrect: If a state legislature chooses to enter this compact, then the fact that it dilutes the impact of its citizens’ votes would not make it illegal. Since it can abolish presidential elections altogether within that state, it can also continue to hold them but dilute the value of each vote (even further than it is already diluted).

The opinion refers to the vote in “their” State. I think this attempts to obviate the ability of the legislature to require electors to vote as the popular vote of other states go. To do otherwise, would mean that a citizen’s vote is negated should that citizen not vote as the national popular vote. Doesn’t look like SCOTUS is sympathetic to dispensing with the electoral college.

    Milhouse in reply to puhiawa. | July 6, 2020 at 2:43 pm

    On the contrary, it does not obviate anything. The constitution puts the power exclusively in the hands of the state legislature. The only limit on that power was that once the electors were chosen they could do as they liked. Now they can’t, so the state legislature has a completely free hand. They can order the electors to vote for the winner of the national vote, or they can simply order them to vote for the Democrat regardless of any votes.

      henrybowman in reply to Milhouse. | July 7, 2020 at 6:20 pm

      I find it interesting to see this argument on a conservative website. It is particularly ironic given that the same websites are traditionally the home of rants about how the 17th Amendment was such a tragedy because it destroyed federalism in favor of mob democracy. Conservatives can’t have this argument both ways.

        Milhouse in reply to henrybowman. | July 7, 2020 at 6:53 pm

        I happen to agree with you about those rants, but the two issues are not all that connected, especially now. I think many of the anti-17th-amendment people are under the impression that before the 17th the state legislatures could tell their senators how to vote, and recall them if they refused; if that were the case then the analogy would be correct. But it’s wasn’t the case. Once a senator was elected he had six years of complete independence. And if he had no intention of running again he could blow his state legislature off altogether and do whatever he liked.

        Which is why I believe the Supreme Court made the wrong decision in this case. I think electors’ position is analogous to that of congressmen, and while the state legislature can set the rules for how they are elected (including electing them itself if it likes), once elected it cannot tell them what to do.

        But that’s water under the bridge now. The Supreme Court has ruled. Now the electors are puppets of the state legislatures, which makes them very different from old-time senators. And now the states can go ahead with their compact and all the bad consequences we predict from such a thing will come to pass.

        Milhouse in reply to henrybowman. | July 7, 2020 at 6:54 pm

        Oh, and “conservatives” can have any argument both ways, simply because conservatives are not a single person. No one conservative can have an argument both ways, but conservatives as a group can and do, frequently.

This points toward a looming disaster.

Postulate—a nominally Republican elector votes for, say, some hell-spawn like Hillary. He then gets fined for not voting the way the election says he must.

So what? Hell-spawn still gets a vote. The fine just means the faithless elector is “taking one for the team”—and somebody will start a GoFundMe to pay the fine, and the elector will end up with millions.

No, this case doesn’t even begin to address the real problem.

The only fix is to eliminate the office of elector entirely, and award electoral votes automatically after the vote count. Call it an “elector” if that will help pass Constitutional muster, even though it’s just a computer routine. But since human electors are not allowed to make any decisions, they serve no function at all, except that of portal for corruption.

    jb4 in reply to tom_swift. | July 6, 2020 at 10:22 pm

    “Looming disaster” indeed. In my opinion, the way things look now, if Trump wins at all it will be by the narrowest of margins and faithless electors could be a real issue. The Dems will apply tremendous pressure, given a potentially large popular vote margin for Biden, that an elector deserting Trump is only “fair”. This election, increasingly, looks to be Hidin’ Biden’s to lose.

      tom_swift in reply to jb4. | July 7, 2020 at 9:45 am

      How many electors, faithful or otherwise, would resist a billion-dollar bribe? The Dems would pay it, and gladly (especially since, as always, they expect someone else to foot the bill).

        Scrape in reply to tom_swift. | July 7, 2020 at 4:17 pm

        It was pointed out in the decision that at least some of the states have provisions that simply replace faithless electors on the spot. Also, where were these billion-dollar, or even million-dollar bribes in 2000? The reality is that faithless electors throughout history have been very few in number and obviously never decisive in the outcome.

Christopher B | July 6, 2020 at 9:58 pm

I agree with Milhouse. Whatever safeguards might remain, the ability to require electors to follow the dictates of the state authorities when casting their EV is a huge plus for NPV. NPV is sure to force some electors to vote against the winner of the popular vote in the state they represent. The fact that electors were not constitutionally bound to vote for any particular candidate before created a question mark as to whether the process would actually work, or break down in partisanship.

Kagan’s comment is laughable. If the past four years have taught us anything it is the value of “pledge laws” and “a formal oath or pledge.” See the Russia conspiracy investigation for details. Further, “failure comply with that pledge” would result in “punishment” of facing a “sanction” or a civil $1,000 fine.” The horror. Selling one’s soul for Wales pales in comparison to a sanction or one thousand measly dollars. But then, she’s a veteran oath taker and pledge maker herself, she would know.

It all means nothing. There will be electors who “vote their conscience” rules be damned. Subsequently, this will become one of the many issues thrown to the courts in the coming election. Collectively, there will be pandemonium, exactly as Democrats plan. Further, to anticipate a quick, decisive decision from this Supreme Court, as with the hanging chads in 2000, is a fools errand. It is going to be ugly.

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