Supreme Court Report

SCOTUS hears arguments on whether 'faithless electors' in the Electoral College can switch allegiances

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The Electoral College received more than two hours of attention on Wednesday before the U.S. Supreme Court, which is likely more than most Americans give it every four years.

“What is the purpose of having electors?” Justice Brett M. Kavanaugh asked, in one of the more metaphysical moments of arguments in cases from Colorado and Washington state.

The arguments were the last among 10 cases that the justices heard over the telephone because of the coronavirus pandemic.

In 2016, for the first time, states removed or punished electors who declined to cast their ballots for their state’s popular-vote winners in the presidential election. The cases involving such “faithless electors” have worked their way up to the high court just as the nation prepares for another presidential election, one fraught with concerns about foreign influence, the effects of the coronavirus pandemic, and a potentially razor-close contest in which the outcome in the Electoral College may come down to a few votes.

A Supreme Court ruling that “unbinds” electors “would unsettle laws and procedures in nearly every state, just months before the 2020 election,” says an amicus brief in the cases from the Campaign Legal Center and Issue One, two non-partisan groups. “And federal law is ill-equipped to address the opportunities for corruption such a ruling would invite.”

The court heard arguments in Chiafalo v. Washington and Colorado Department of State v. Baca, both involving a handful of people chosen as Democratic Party electors in states in which Democratic nominee Hillary Clinton won the popular vote in 2016.

The ‘Hamilton Electors’ plan

Instead of casting their Electoral College ballots for Clinton, the rogue electors voted for or tried to cast ballots for other people as a form of protest. This was after some of those dissenters had tried and failed to convince enough electors to deny Republican candidate Donald J. Trump his victory. This would send the election to the U.S. House of Representatives, where the electors hoped lawmakers would coalesce around anyone but Trump.

Bret Chiafalo of Everett, Washington, an incident manager for Microsoft Corp., was slated as a Democratic Party elector in 2016. In the run-up to the election, he researched the history of the Electoral College, including Federalist No. 68, written by Alexander Hamilton, which explains the original understanding of the nation’s founders that electors would be free agents who would exercise independent judgment.

“I figured this was all idle thought because I believed Hillary was going to win by 40 points,” he says, in reference to Clinton. When Trump won enough states to claim electoral victory, Chiafalo hatched the plan with Micheal Baca, a graduate student who was a Democratic elector in Colorado, to disrupt the Electoral College vote.

They called it “Hamilton Electors,” and the goal was to convince 37 electors in states that Trump won to vote for someone else. It almost didn’t matter that Chiafalo and Baca were Democratic electors from states that Clinton won, other than to motivate them to use that role to advance the plan.

“There wasn’t much time to mourn” Trump’s victory, says Baca. “I thought, ‘Electors still play a role, so what can we do?’ “

Their plan quickly fizzled, as few Republican electors were willing to commit to voting for someone other than Trump. Still, Chiafalo, Baca and a few others wanted to make a statement by casting their ballots for someone other than Clinton.

The electors sought clarity from Colorado and Washington officials about state laws that require electors to follow the popular election vote, including filing lawsuits seeking injunctive relief. But those were rejected.

In Colorado, officials even changed the pledge administered to electors to put pressure on those who had expressed a desire to cast independent votes. While two other electors gave in and voted for Clinton, Baca disregarded his pledge, crossing off Clinton’s name and writing in that of then-Ohio Gov. John R. Kasich Jr., who had unsuccessfully sought the Republican nomination in 2016.

Baca was removed from the slate and referred for a perjury prosecution, though he was never charged.

In Washington, Chiafalo and two other electors cast their ballots for Colin Powell, a former U.S. secretary of state. The votes were counted but the state fined them $1,000 each for violating state law.

In the end, 10 electors cast ballots, or tried to do so, for candidates other than the party nominees, the most in more than 100 years. But only two of those were supposed to vote for Trump.

Washington state’s fines led to a ruling by the Washington Supreme Court upholding the fine. The state high court held that state’s power to appoint electors was broad enough to support a fine on those who fail to uphold their pledge. The court cited a 1952 U.S. Supreme Court decision, Ray v. Blair, which upheld an Alabama law that required electors to support their party’s nominee but left open whether electors had any federal constitutional right to use discretion in their votes.

Meanwhile, the Colorado electors sued and won in the Denver-based 10th U.S. Circuit Court of Appeals, holding that key terms in relevant constitutional provisions such as “vote” and “elector” have a common theme: “They all imply the right to make a choice or voice an individual opinion.”

On Wednesday during the oral arguments, Lawrence Lessig, a Harvard Law School professor representing the electors, told the justices in Chiafalo’s case that Washington views an elector as its “agent, or maybe better, minion.”

“The actual electors that the Constitution creates have a legal discretion, as every elector does, not an unfettered discretion, as Washington puts it,” said Lessig, who founded Equal Citizens, a non-profit group in Cambridge, Massachusetts. “To the contrary, a completely fettered discretion, just fettered by moral and political obligations, not by legal constraint.”

Jason Harrow, the chief counsel of Equal Citizens, argued for Baca in the Colorado case that there were several scenarios when it was important for electors to be able to exercise their discretion, such as with the death or debilitation of the winner after the election but before the Electoral College vote.

“There must be times when electors and only those electors are best placed to act in the interest of country,” he said. “The intervention here was extraordinary and unprecedented. … Most electors have been free in most elections, and here we are today.”

Chaos theory

The states argued that history, the Constitution and various Supreme Court rulings support their view.

Noah Purcell, the solicitor general of Washington state, said that under the faithless electors’ view, “the electors can choose whoever they want to be president, regardless of any voluntary commitments they made to secure their position, regardless of how their state voted, and regardless of whether they are being bribed or blackmailed for their vote. That is not the law.”

Philip J. Weiser, the attorney general of Colorado, told the justices that the 10th Circuit’s ruling for the electors could result in “chaos” that “could occasion a constitutional crisis.”

“It’s the role of the states to oversee confidence in our election systems, to ensure the public’s voice is heard,” he said. “The integrity of our elections are at stake in this case.”

Several justices seized on the chaos worries in the two arguments.

Justice Samuel A. Alito Jr. pointed to an amicus brief supporting the states, filed by Robert W. Bennett, which argued that a victory for the faithless electors would “lead to democratic instability and unrest.”

Bennett, a professor and former dean at Northwestern University’s Pritzker School of Law, says in the brief that the 10 electors who tried to vote faithlessly in 2016 would have changed the outcome in five of the last 58 presidential elections. In the extremely close 2000 election in which George W. Bush defeated Albert Gore Jr., “only two faithless electors would have been needed to send the election to the backup procedure in the House of Representatives,” Bennett’s brief says.

Kavanaugh referred to the “avoid chaos” principle of judging, “which suggests that if it’s a close call or a tiebreaker, that we shouldn’t facilitate or create chaos.”

Some justices seemed to express support for the originalist arguments of the faithless electors, or doubted that striking down the sanctions would have major effects.

Justice Ruth Bader Ginsburg wondered whether a ruling against sanctions would “actually alter our democratic processes.”

“Most states already require elector pledges,” she said. “And faithless voting throughout the years has always been rare.”

Baca is now a high school government teacher in Las Vegas, and includes lessons about the Electoral College in his classes. He said he worried he helped create a “Pandora’s box.”

“Can 538 Micheal Bacas elect a president?” Baca wonders. “I was acting in the best interest of the country, but other people may have their own reasons.”

Chiafalo agrees that if his side wins, “it’s going to cause some chaos. But I believe I am standing on the rock of the Constitution.”

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