WASHINGTON — States can require members of the Electoral College to cast their votes for the presidential candidates they had pledged to support, the Supreme Court unanimously ruled on Monday, curbing the independence of electors and limiting one potential source of uncertainty in the 2020 presidential election.
Thirty-two states and the District of Columbia have laws requiring electors to vote as they had promised, but recent court decisions had come to opposite conclusions about whether electors may disregard their pledges.
The Supreme Court resolved the dispute on Monday in a pair of cases concerning electors in Washington State and Colorado, by saying that states are entitled to remove or punish electors who changed their votes. In states without such penalties, electors remain free to change their votes.
“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for president,” Justice Elena Kagan wrote for seven members of the court
Election law scholars welcomed the ruling.
“The court’s decision strikes a blow for legal and political stability and sanity,” said Richard H. Pildes, a law professor at New York University. “Every American understands themselves to be voting for the persons running for president, not for members of the Electoral College, and it is now clear that states can enforce that understanding.”
Members of the Electoral College cast the actual votes for president four weeks after Election Day. Among the states and the District of Columbia that have laws requiring electors to vote as they had promised, 15 states back up their requirements by either removing rogue electors or subjecting them to financial penalties.
Since the Constitution gives states the power to appoint electors, Justice Kagan wrote, that power allows them to impose conditions on their appointment,
“A state can require, for example, that an elector live in the state or qualify as a regular voter during the relevant time period,” Justice Kagan wrote. It can also, she wrote, insist that electors vote for the candidate they had promised to support. And “it can demand that the elector actually live up to his pledge, on pain of penalty,” she wrote.
Recent court decisions had come to opposite conclusions about whether electors may disregard their pledges.
Last year, the Washington State Supreme Court upheld fines of $1,000 on three Democratic electors who had cast their electoral votes in 2016 for Colin L. Powell rather than for Hillary Clinton.
Justice Kagan explained the electors’ thinking.
“The three hoped they could encourage other electors — particularly those from states Donald Trump had carried — to follow their example,” she wrote. “The idea was to deprive him of a majority of electoral votes and throw the election into the House of Representatives.”
The effort failed. “Only seven electors across the nation cast faithless votes — the most in a century, but well short of the goal,” Justice Kagan wrote. “Candidate Trump became President Trump.”
In addition to the three Democratic electors in Washington State who cast their electoral votes for Mr. Powell, a fourth Democratic elector in the state voted for Faith Spotted Eagle, a Native American tribal leader and prominent opponent of the Keystone XL pipeline. A Democratic elector in Hawaii voted for Senator Bernie Sanders of Vermont.
Republican electors in Texas voted for John Kasich, then the governor of Ohio, and Ron Paul, a former representative of Texas.
On election night in 2016, the electoral vote was expected to be 306 for Donald J. Trump and 232 for Mrs. Clinton. In the end, though, it was 304 to 227.
The majority in the Washington Supreme Court decision said the Constitution allows states to insist that electors vote for their parties’ candidates.
In dissent, Justice Steven C. González disagreed. “The Constitution provides the state only with the power to appoint,” he wrote, “leaving the electors with the discretion to vote their conscience.”
How the court ruled
In Chiafalo v. Washington, the court ruled, 9 to 0, that states may require members of the Electoral College to vote for the candidates they had pledged to support.
Sotomayor
Ginsburg
Kagan
Breyer
Roberts
Kavanaugh
Alito
Gorsuch
Thomas
Where the public stands
| States should be able to require electors to vote for the candidate who won their state | States should not be able to require electors to vote for the candidate who won their state | |
|---|---|---|
| All | ||
| Democrats | ||
| Independents | ||
| Republicans | ||
Question wording: In the U.S., the president is chosen by the Electoral College, comprised of “electors” from all 50 states and the District of Columbia. Some people think that states should be able to require Electoral College electors to vote for the person who won the majority of votes in the state and not some other person. However, some people think that electors should be able to vote for whomever they want. What do you think? | Source: SCOTUSPoll, based on an online YouGov survey of 2,000 U.S. adults conducted April 29 to May 12.
A few months after the Washington Supreme Court ruled, the United States Court of Appeals for the 10th Circuit, in Denver, rejected its reasoning in a case involving Colorado. The federal appeals court said that Colorado had been wrong to discard a vote from a Democratic elector who had wanted to cast a ballot for Gov. John Kasich of Ohio.
“Electors, once appointed, are free to vote as they choose,” Judge Carolyn B. McHugh wrote for the majority of a divided three-judge panel. “While the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote or to appoint a new elector to cast a replacement vote.”
Some framers of the Constitution seemed to contemplate that electors would use independent judgment, the Supreme Court has said. “Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive,” Chief Justice Melville Fuller wrote in an 1892 Supreme Court decision. Over time, he added, “the original expectation may be said to have been frustrated.”
Alexander Hamilton described his expectation in the Federalist Papers. “Men chosen by the people for the special purpose” of selecting the president, he wrote, “will be most likely to possess the information and discernment requisite to such complicated investigations.”
Justice Kagan said remarks like that one did not establish the meaning of the Constitution.
“Even assuming other framers shared that outlook, it would not be enough,” she wrote. “Whether by choice or accident, the framers did not reduce their thoughts about electors’ discretion to the printed page.”
Judge McHugh of the 10th Circuit said the text of the Constitution also supports elector independence. The words of the relevant provisions, including “elector,” “vote” and “ballot,” she wrote, “have a common theme: They all imply the right to make a choice or voice an individual opinion.”
Justice Kagan rejected that analysis.
“Those words need not always connote independent choice,” she wrote. “Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying that he ‘votes’ or fills in a ‘ballot.’”
“For that matter, some elections give the voter no real choice because there is only one name on a ballot (consider an old Soviet election, or even a downballot race in this country),” she wrote. “Yet if the person in the voting booth goes through the motions, we consider him to have voted.”
Justice Clarence Thomas, joined in part by Justice Neil M. Gorsuch, agreed with the majority’s bottom line but did not adopt its reasoning. He said he would have relied on general principles of federalism to reach essentially the same result.
Over the years, members of the Electoral College have cast about 180 faithless votes for president or vice president, Justice Kagan wrote, and Congress has accepted all of them. But she discounted those examples.
“The history going the opposite way is one of anomalies only,” she wrote, noting that there have been more than 23,000 electoral votes cast for president or vice president. “And more than a third of the faithless votes come from 1872, when the Democratic Party’s nominee (Horace Greeley) died just after Election Day. Putting those aside, faithless votes represent just one-half of one percent of the total.”
Justice Kagan said the possibility of a candidate’s death after Election Day raised important questions. “We do not dismiss how much turmoil such an event could cause,” she wrote, adding that “because the situation is not before us, nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate.”
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