Supreme Court Upholds Sanctions Made against Presidential 'Faithless Electors'

Mikaela Mathews | Contributor | Tuesday, July 7, 2020
The Supreme Court building, SCOTUS says states can place sanctions of electors who do not vote with their states popular winner

Supreme Court Upholds Sanctions Made against Presidential 'Faithless Electors'

States are allowed to enforce sanctions against "faithless electors” who do not vote for the popular winner, according to a new ruling from the Supreme Court.

Fox News reports that the justices upheld state laws that require “faithless electors” to back the popular vote. The case was sparked by the “Hamilton Electors” in 2016 who chose moderate Republicans instead of Hillary Clinton in an attempt to push votes away from Donald Trump.

The court ruled unanimously, 9-0, that the sanctions imposed on the electors in Washington and Colorado were constitutional.  Michael Baca of Colorado was removed and replaced while Bret Chiafalo of Washington received a fine.

“We’re trying to be that ‘break in case of emergency’ fire hose that’s gotten dusty over the last 200 years,” Chiafalo told The Atlantic  in 2016. “This is an emergency.”

Electors cast the final official ballot for the presidential election based off of the popular vote in the state. In rare cases, the electors will break off from the popular vote and instead cast a vote for a different candidate.

“Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others,” said Justice Elena Kagan. “That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”

Washington Secretary of State Kim Wyman agreed: “Ultimately it is really about reflecting the will of the voters who participated in the election. And it is the state’s determination of ensuring that those voters are represented in the Electoral College, and it is a state’s right and it’s a state’s function.”

Though the Supreme Court allowed states to force electors to vote for the popular vote, it does not require them to. If a state allows it, faithless electors can still vote how they please. Kagan, who wrote the opinion on the case, stated that Article II, Section 1 of the Constitution “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.”

Lawyers who argued the case before the Court feared that a decision would not be made before the 2020 election. Harvard Law professor Lawrence Lessig, who argued for the Hamilton Elector’s, said, “To imagine the issue being teed up in the middle of an actual election, and forcing the Supreme Court to decide the issue where its decision would be picking a president, it would be Bush v. Gore on steroids.”

Photo courtesy: Harold Mendoza/Unsplash

Mikaela Mathews is a freelance writer and editor based in Dallas, TX. She was the editor of a local magazine and a contributing writer for the Galveston Daily News and Spirit Magazine.