Article from The New York Times, Jan. 17, 2020, By
The Supreme Court agreed Friday to decide whether members of the Electoral College may cast their votes for presidential candidates other than the ones they had pledged to support.
The court’s decision to settle the question in its current term, which ends in June, allows it to act without knowing which candidate in the 2020 election could benefit from its ruling.
Every four years, weeks after Election Day, the members of the Electoral College cast the actual votes for president. Many states have laws requiring electors to pledge that they will support the winner of the state’s popular vote, but electors occasionally go rogue.
The votes of only 10 “faithless electors” could have changed the outcomes in five of the previous 58 presidential elections. In the 2000 election, for instance, George W. Bush beat Al Gore by five electoral votes.
In May, 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. The majority 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.”
In August, the United States Court of Appeals for the 10th Circuit, in Denver, rejected the Washington State Supreme Court’s reasoning. It 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.
In a petition seeking Supreme Court review in the case, Colorado Department of State v. Baca, No. 19-518, lawyers for Colorado wrote that “states may require electors to vote consistent with the state’s popular vote.” The appeals court’s decision, the petition said, threatens “to undermine the democratic principles underpinning over two centuries of electing United States presidents.”
The 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 the original 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.”
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.”
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.
Seven electors succeeded in voting for other candidates. A fourth Democratic elector in Washington State voted for Faith Spotted Eagle, a Native American tribal leader and prominent opponent of the Keystone XL pipeline, and a Democratic elector in Hawaii voted for Senator Bernie Sanders of Vermont. Republican electors in Texas voted for Mr. Kasich and Ron Paul, a former representative of Texas.
Three more Democratic electors — in Colorado, Maine and Minnesota — tried to vote for candidates other than Mrs. Clinton. Two were replaced, and a third eventually chose her.
The number of faithless votes was the largest in history, but the phenomenon was not particularly unusual. “Congress has accepted the vote of every vote contrary to a pledge or expectation in the nation’s history that has been transmitted to it — a total of more than 150 votes across 20 different elections from 1796 to 2016,” the petition in the Washington State case said, citing data from FairVote, a nonpartisan voting rights advocacy group.
Congress has only once debated the question, when some lawmakers objected in 1969 to counting a Republican elector’s vote for George C. Wallace after Richard M. Nixon won the popular vote in the elector’s state. Both houses rejected the objection, and the vote stood.
Original article: https://www.nytimes.com/2020/01/17/us/supreme-court-electoral-college.html