Supreme Court hears challenges to laws against 'faithless electors'

Don Jacobson
A video display shows the 2016 U.S. presidential vote is too close to call in Florida on election night at the Javits Center in New York City. File Photo by Kevin Dietsch/UPI
A video display shows the 2016 U.S. presidential vote is too close to call in Florida on election night at the Javits Center in New York City. File Photo by Kevin Dietsch/UPI | License Photo

May 13 (UPI) -- The U.S. Supreme Court heard two cases Wednesday that could have a significant impact on "faithless electors," rogue voters in the Electoral College who cast the formal ballots for the president of the United States.

The two cases are the final items in the Supreme Court's October 2019 term and conclude the justices' historic remote hearings that have been necessitated by the coronavirus pandemic.


Both cases stem from the 2016 U.S. presidential election concerning three electors in Washington state and one in Colorado who defied their state results and cast their ballots for other candidates.

The high court ruling could have a profound effect on elections should justices side with the plaintiffs -- which include four electors from Washington and Colorado who argue that state laws requiring them to cast a ballot for the state popular vote winner are unconstitutional.

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There is no federal law that requires electors to vote for whichever candidate carries the state, but most states have procedures that invalidate faithless electors and replace them with someone who will vote accordingly.

There were a total of 10 faithless electors in the 2016 election, which raised concern about their potential to disrupt elections in the future.


The Washington electors were fined $1,000 for breaking state law. Instead of casting their votes for Democratic candidate Hillary Clinton, who carried the state, they instead voted for former U.S. Secretary of State Colin Powell.

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Colorado removed elector Michael Baca from the position when he cast a vote for former Ohio Gov. John Kasich rather than Clinton.

Donald Trump won the election with 304 electoral votes to Clinton's 227.

Lower courts in both states have disagreed on whether the electors' dissent was legal. Baca's actions were upheld by Colorado courts, while Washington courts ruled the fines were justified.

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Some states are urging the Supreme Court to rule against the electors, citing then-Republican nominee George W. Bush's win over Vice President Al Gore in 2000 as an example of how an "inability to replace even one elector could throw an election."

During the hearing, several court members voiced strong reservations about the electors' arguments.

Three conservative justices, Samuel Alito, Clarence Thomas and Brett Kavanaugh, each voiced concern about how the behavior of electors might be influenced if they were free to vote as they pleased.


For instance, if the votes of few electors were enough to decide a contest, Alito said, "the rational response of the losing political party ... would be to launch a massive campaign to try to influence electors and there would be a long period of uncertainty about who the next president was going to be."

That kind of situation, he warned, could produce "chaos."

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