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2020 election: Supreme Court confronts 'faithless electors'

  
Via:  Ender  •  4 years ago  •  7 comments

By:   Richard Wolf (USA TODAY)

2020 election: Supreme Court confronts 'faithless electors'
Must the men and women chosen on Election Day to vote for the winner of their state's popular vote stay loyal to the cause? Or can they go rogue?

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WASHINGTON - Election Day is Nov. 3, but the winner of the White House traditionally isn't official until December, when 538 presidential electors confirm the results.

On Wednesday, the Supreme Court will consider giving those virtually unknown people more than perfunctory power.

The justices, customarily allergic to politics, appear on track to decide a threshold question that haunts the way presidents and vice presidents are chosen: Must the men and women chosen on Election Day to cast ballots for the winner of their state's popular vote keep their pledge? Or can they go rogue?

Never before have these electors flipped an election. But 10 electors were disloyal or tried to be in 2016, enough to change the results of five previous presidential elections. And there's a first time for everything.

"What's motivating both sides in this case is the need to get this resolved before things blow up in November," says Rebecca Green, co-director of the election law program at William & Mary Law School in Virginia.

The 2020 presidential election already faces myriad challenges. Many states are seeking to expand absentee voting in the face of the coronavirus pandemic, which has relegated presumptive Democratic nominee Joe Biden to a makeshift basement studio while President Donald Trump and Vice President Mike Pence deal with staff members who have tested positive.

'Resolve this conflict now'


Now come two cases from Colorado and Washington State that could determine whether presidential electors have autonomy under the Electoral College system to vote for whomever they choose - regardless of the results on Nov. 3.

"If we're going to dramatically change the role of electors, obviously everyone should know that before the election," Washington Solicitor General Noah Purcell says.

Washington's Supreme Court last year upheld $1,000 fines against three Democratic electors who cast votes in December 2016 for Colin Powell rather than Hillary Clinton, who had won the state's popular vote. They had sought to deny Trump the presidency by convincing electors to choose a different Republican candidate.

Their ultimate goal: eliminating the Electoral College that gave the Oval Office to Trump in 2016 and to George W. Bush in 2000 though both lost the popular vote in those years.

By contrast, the U.S. Court of Appeals for the 10th Circuit, based in Denver, ruled that a rogue vote cast by a Democratic elector in Colorado for Republican John Kasich rather than Clinton deserved to be counted.

The Supreme Court decided in January to hear both appeals, lest it be forced to intervene in a potential emergency situation after Election Day should an electors' rebellion this fall potentially affect results.

"This court should resolve this conflict now, before it arises within the context of a contested election," Harvard Law School professor Lawrence Lessig urged on behalf of the three Washington State electors.

"As the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this court to resolve the question of electoral freedom within the context of an ongoing contest," he warned.

'Playing with fire'


Under the Constitution, each state appoints electors to cast the electoral ballots apportioned by the popular vote. Thirty-two states and the District of Columbia require electors to vote for their party's candidate. Some block nonconforming ballots from being counted or replace electors who don't toe the line. A few states provide for criminal penalties.

Washington's Supreme Court ruled that the state was within its rights to issue the first-ever fines for so-called faithless electors.

"An elector acts under the authority of the state, and no First Amendment right is violated when a state imposes a fine based on an elector's violation of his pledge," that court ruled in an 8-1 decision.

The 10th Circuit set a different precedent in the Colorado case. "The states may not interfere with the electors' exercise of discretion in voting for president and vice president by removing the elector and nullifying his vote," the federal appeals court ruled.

Green notes that the job of electors is not always a formality. For example, a study by FairVote found 165 electors over the course of history who exercised discretion.

"There is an argument to be made that it's not disruptive," she says. "But it's certainly scary."

The Campaign Legal Center urged the court to uphold states' rights to bind its electors to the candidate chosen by voters. To do otherwise, the group said, would "invite corruption and impropriety."

"It does seem like such a terrible idea," says Paul Smith, the group's vice president for litigation and strategy. Trying to eliminate the Electoral College by empowering 538 electors, he says, is "a little bit of playing with fire."


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Ender
Professor Principal
1  seeder  Ender    4 years ago

This should actually be a bipartisan issue because it can impact us all but somehow I doubt it.

I don't think the power should be in the hands of only several people that could just give the vote to anyone they choose despite what the majority of voters picked.

 
 
 
Ronin2
Professor Quiet
2  Ronin2    4 years ago

Getting rid of the Electoral College is the leftist's wet dream.

The perfect way to silence fly over country forever that just doesn't always vote their way.  Their votes would be forever irrelevant in Presidential elections.

It would put all of the power in California, NY, Florida, and Texas.

Just be happy they are still counting legal and illegal immigrants as a part of the US population. The big four, especially California, are way over-represented in the House and Electoral college. 

 
 
 
Ender
Professor Principal
2.1  seeder  Ender  replied to  Ronin2 @2    4 years ago

So you think that even if people in flyover country voted one way their elector could decide to give the electoral vote to someone else?

That is the issue.

 
 
 
Tacos!
Professor Guide
3  Tacos!    4 years ago

It seems like it should be pretty straightforward that states can require electors to vote however the state says. The Constitution gives states the power to select electors in whatever manner they choose. That would seem to include the requirement that they vote consistent with the popular vote in their state.

I think it may have been assumed or desired by some founders that electors would be thoughtful and vote based on the dictates of their individual conscience, but that is not specified in the Constitution.

So, if states want to put restrictions on how electors vote, that would seem to be their prerogative. If you don’t like the limitations, don’t be an elector.

 
 

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