Judiciary

SCOTUS Slams Door on Unfaithful Electors

A unanimous High Court says a state's electors must honor the will of its voters.

Lewis Morris · Jul. 7, 2020

It’s refreshing to know that the U.S. Supreme Court is still, on occasion, capable of good jurisprudence. In a unanimous decision announced Monday, the High Court ruled that states have the right to remove or penalize faithless electors who vote against the will of the voting majority in presidential elections.

The case in question, Chiafalo v. Washington, concerned three Democrat electors in Washington state who switched their pledged votes in the 2016 election for Hillary Clinton to Colin Powell in hopes of persuading Republican electors to also switch their votes to prevent Donald Trump from winning the Electoral College. In doing so, the electors failed to honor their pledge to vote for the winner of their state’s popular vote, prompting the state to fine each of them $1,000. The electors challenged the fines on the grounds that state law restricting their Electoral College vote was unconstitutional.

Another case tied to Chiafalo concerned an elector in Colorado who also switched his vote against the popular-vote winner of that state, Clinton, in favor of then-Ohio Gov. John Kasich. In this instance, the High Court reversed an appeals-court decision in favor of the elector.

The electors in Chiafalo, represented by Lawrence Lessig, a leftist activist and hardened opponent of the Electoral College, maintained that the Founders intended for electors to use their discretion in choosing the best person for president rather than honoring the will of the voters of their respective states. In this particular case, Lessig argued that Washington state did not have the authority to penalize electors who did not adhere to the will of the voters because the Constitution does not expressly state that electors must honor popular will. Lessig argued that because the framers did not expressly demand faithful electors, they implied that the electors may use their discretion in submitting their votes.

In writing the Court’s opinion, Justice Elena Kagan stated, “Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does… The Electors’ constitutional claim has neither text nor history on its side. Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights.”

In theory, the unanimous ruling should be the last word on the matter. Coming just four months before what is sure to be a bitter and hard-fought presidential election, Chiafalo leaves no wiggle room for electors when it comes to honoring their pledge to their respective states. In doing so, it would also seem to block another illegitimate pathway to power being pursued by those on the Left: the National Popular Vote Interstate Compact.

The driving force behind the compact is for electors to break their constitutional pledge to honor the popular vote of the states in favor of the winner of the national popular vote. Currently, 16 states plus the District of Columbia, accounting for 196 electoral votes, have signed the compact, which would pledge their votes to the winner of the national popular vote, even if it means ignoring the will of the people of their own state. The compact goes into effect when enough states join it to total 270 electoral votes, the number needed to win the presidency.

Chiafalo puts a stake right through the heart of the compact because it recognizes that states have the power to compel their electors to honor their pledge or face removal and/or punitive measures. Faithless electors who are removed would have their votes nullified. While we can’t underestimate the creativity of the Left in subverting the Constitution, we can take solace in knowing that the Supreme Court got this one right, and unanimously so.

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