SCOTUS prepares to hear faithless electors cases

The Supreme Court is preparing to hear two important cases next week that could have a significant impact on all future presidential elections. (Well, that’s assuming that Sonia Sotomayor can figure out how to unmute her microphone.) Both Chiafalo v. Washington and Colorado Department of State v. Baca deal with the issue of faithless electors that popped up after the 2016 election. At stake is the question of whether or not states have the right to force members of the electoral college to cast their votes in accordance with the outcome of the statewide election or if the electors are free to vote as their own conscience dictates.

At Vox, Ian Millhiser imagines a dire situation where Joe Biden narrowly carries enough states to give him the electoral college total he needs but is then robbed of victory by a handful of faithless electors. The author goes on from there to consider the constitutional realities underlying these cases and how the justices might rule.

Imagine that, when the votes are finally counted in the 2020 election, former Vice President Joe Biden squeezes out a narrow victory in the Electoral College. Then imagine that, weeks later, the nation is shocked to learn that President Donald Trump will receive a second term because a few previously unknown members of the Electoral College refused to vote for Biden.

A pair of cases the Supreme Court will hear next week, Chiafalo v. Washington and Colorado Department of State v. Baca, will decide if this scenario is even possible. Both cases involve “faithless electors” — members of the Electoral College who go rogue and refuse to vote for the candidate who won their state…

The legal dispute in both cases turns upon a narrow distinction between a state’s power to appoint presidential electors, and its power to compel those electors to behave in a certain way after they are appointed.

Particularly given the fact that this article is from Vox, it’s easy to see that Millhiser isn’t a fan of the electoral college to begin with, describing it as insufficiently democratic. I find myself wondering if he would be quite as upset if it were Trump who narrowly carried the day, only to see the office given to Biden by faithless electors, but that’s really not the issue at hand.

The Supreme Court hasn’t had a lot to say about this issue over the years. They did issue one ruling in the 1950s saying that electors could be made to swear an oath saying that they would support their party’s nominee before being seated. What they didn’t tell us was what, if any options were open to the state if the elector turned around and violated that oath.

In Chiafalo, the state of Washington fined three faithless electors $1,000 each. In Baca, one elector attempted to vote for John Kasich despite Hillary Clinton having carried the state. Colorado removed him and replaced him with someone willing to cast their vote for Hillary. All of the electors have appealed those actions, leading us to where we are today.

This has always been an uncomfortable issue for me, as I imagine it is for many conservatives. On the surface, I would imagine that most of us bristle at the idea of someone overriding the will of the people as expressed at the polls and substituting their own preference instead. Our votes are supposed to matter. Surely this can’t be what the Founders intended!

But therein lies the problem. It actually was what at least some of the Founders intended. They debated it when the Constitution was being developed and it’s fairly obvious which side won. In Federalist 68, Hamilton specifically argued that the riffraff out in the streets might be unable to elect a man of sufficient virtue and ability to lead the nation, saying that only “men most capable of analyzing the qualities adapted to the station” should be entrusted with such momentous decisions. And Hamilton was talking about a society where pretty much only white, male landowners were going to end up voting. Imagine what’s he’d be saying about the hoi polloi we have running around today.

The Founders decided to go with the electoral college over the popular vote. If they had wanted to put a limit on the free will of the electors, they could have chosen to do so. But they did not.

So if you consider yourself a faithful constitutional originalist who respects the directives and vision of the Founding Fathers, you probably support their decision to create the electoral college instead of just going with a national popular vote. (That certainly worked out in our favor in 2016.) But if that’s the case, it would be rather hypocritical of us to turn around and say that their vision of how the electors conduct themselves is flawed, wouldn’t it?

I don’t like it any more than I’m sure many of you do. But when faithless electors pop up, what we’re really seeing is the system functioning as designed. This isn’t a bug. It’s a feature. If the state parties don’t like the way this has been working out, there’s a better solution available than seeking some sort of mandate from the Supreme Court. Stop handing out electoral college seats like candy and do a better job of vetting the people seeking this honor. Ensure they are long-time party loyalists. Check their social media feeds and other published work to see if they truly support the party’s nominee. (This should be particularly true for Republicans these days.) If you don’t want to deal with faithless electors, pick people who are the least likely to go rogue on you.