Supreme Court rules presidential electors can be forced to uphold popular vote
President Trump and President George W. Bush won the electoral vote during the election, but not the popular vote. How does the electoral college work? USA TODAY
WASHINGTON – The Supreme Court addressed one of many potential problems facing the 2020 race for the White House on Monday, ruling that states can insist members of the Electoral College support the winner of the popular vote on Election Day rather than risk altering the course of history.
The unanimous decision will prevent most of the 538 presidential electors from seeking to upend the results of the presidential race when carrying out their ministerial duties a month after the election.
Thirty-two states require the people chosen on Election Day to cast ballots for the winner of their states' popular vote. In some of those states, rogue electors can be replaced or fined. Eighteen states have no such requirement.
The court ruled in cases from Washington and Colorado, where challenges to the rules for presidential electors resulted in opposite lower court rulings.
"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," Associate Justice Elena Kagan wrote in an opinion that name-dropped Alexander Hamilton and the TV series "Veep."
In the Washington case, she said, "the state instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution – as well as with the trust of a nation that here, We the People rule."
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During the last oral argument of the court's term in May, justices on both sides of the ideological aisle expressed concern that electors could be bribed, particularly by the losing party in a close election.
One thing they knew: Failure to act could put the nation in a bind if a razor-thin margin in November gives electors inordinate power to upend the election. Never before has this happened, but 10 electors were disloyal or tried to be in 2016, enough to change the results of five previous presidential elections.
The 2020 race already faces unusual challenges. Many states seek to expand voting by mail in the face of the coronavirus pandemic. President Donald Trump forced Republicans to move his convention speechfrom North Carolina to Florida. Presumptive Democratic nominee Joe Biden warned that Trump might try to steal the election or refuse to leave office.
Last year, Washington's Supreme Court upheld $1,000 fines against three Democratic electors who cast votes in December 2016 for Colin Powell rather than Hillary Clinton. Their immediate goal was to deny Trump the presidency by convincing electors to choose a different Republican candidate.
Their broader goal: calling attention to problems with the Electoral College, which gave the Oval Office to Trump in 2016 and to George W. Bush in 2000, though both lost the national popular vote.
"Make no mistake: Laws binding electors are not a cure-all. They can go haywire in unexpected situations, and presidential electors remain free to choose in 18 states," said one of the attorneys representing state electors, Jason Harrow.
He and Lawrence Lessig, a Harvard Law School professor who also argued the case at the Supreme Court, announced Monday the launch of a campaign by the group Equal Citizens to "fix" the Electoral College.
One potential outcome, they said, would be to increase support for the National Popular Vote Compact, which seeks to get state electors to support the winner of the U.S. popular vote. Fifteen liberal-leaning states and the District of Columbia have endorsed the concept.
Differing with Washington's Supreme Court, the U.S. Court of Appeals for the 10th Circuit ruled that a rogue vote cast by a Democratic elector in Colorado for Republican John Kasich rather than Clinton deserved to be counted.
The Supreme Court decided in January to hear both appeals, lest it be forced to intervene in a potential emergency situation after Election Day.
Under the Constitution, each state appoints electors to cast the electoral ballots. Thirty-two states and the District of Columbia require them to vote for the winner of the popular vote. Some block nonconforming ballots from being counted or replace electors who don't toe the line. A few states provide for criminal penalties.
Paul Smith, vice president of the Campaign Legal Center, applauded the high court's decision.
"Voters should go to the polls with the confidence that their vote will count and that their political system will be free from corruption," he said. "However far from perfect the current system may be, the chaos of an unbound Electoral College would have been even worse."