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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