This morning, the Supreme Court dropped its much-anticipated opinion on faithless electors in Chiafalo v. Washington, which was consolidated with Colorado Department of State v. Baca. Ruling unanimously, the Court held that a state may enforce an elector’s pledge to support their party’s nominee – and the state voters’ choice – for president in the Electoral College.
For many, the Court’s opinion puts to rest the argument that electors have the freedom to depart from the will of the voters to instead cast their vote as they please; however, the Court’s decision leaves open two methods by which electors can remain faithless – (1) when the state has no law in place to compel faithfulness, and (2) when the penalty is a monetary fine that the elector can pay in exchange for his unfaithfulness.
Thirty-two states compel electors to pledge to vote for the presidential candidate their citizens have preferred, and only 16 of these states impose some kind of sanction in the event an elector violates his pledge. Most of these sanctions include canceling an elector’s unfaithful vote, removing the faithless elector from his position, and substituting him with an alternate whose vote the state reports instead. A few states impose monetary sanctions on electors who vote contrary to their pledge and the will of the people.
Only thirteen states have laws on the books that void a faithless elector’s vote and replace the elector with one who will vote according to the pledge. And while three additional states impose monetary penalties on faithless electors.
In Chiafalo, three electors cast votes for Colin Powell for president and assorted candidates for vice president instead of Mrs. Clinton and Tim Kaine. Congress counted those votes for Mr. Powell. Those electors were each ultimately fined $1000.
In Baca, an elector who attempted to cast a vote for John Kasich for president instead of Hillary Clinton was deemed to have vacated his office. He was replaced, another elector voted for Mrs. Clinton, and that vote was counted in Congress.
As Amy Howe writes over at SCOTUS Blog:
Kagan dismissed the history supporting the electors as “one of anomalies only.” There have been only 180 “faithless” votes out of over 23,000 cast, she observed, and more than a third of those can be attributed to one election, in which the Democratic Party’s nominee died shortly after Election Day in 1872. “Putting those aside,” she concluded, “faithless votes represent just one-half of one percent of the total.”
Justice Clarence Thomas filed a separate opinion (joined in part by Justice Neil Gorsuch) in which he agreed with the rest of his colleagues that the faithless elector laws are constitutional, even if he did not agree with the majority’s reasoning. Because Thomas believes that the Constitution does not say anything about whether the states have the power to require electors to vote for the candidates they pledged to support, he would uphold the laws on the ground that any powers that the Constitution does not specifically either give to the federal government or take away from the states belong to the states.
Howe correctly identifies the bottom line:
Today’s rulings leave the current system in place.
This means electors could still be faithless in states without compulsion and/or removal laws.