Monday, July 6, 2020

Supreme Court Says States Can Punish Faithless Electors

A unanimous Supreme Court today upheld a state law that punishes "faithless electors." The ruling means that states can continue to impose fines on individuals appointed to vote in the Electoral College who pledge their vote to one candidate, but actually vote for another. In a companion case (in a brief per curiam opinion), the Court held that a state could remove and replace a faithless elector with an elector who would vote for the winner of the state's popular vote.

The case, Chiafalo v. Washington, arose when three Washington electors who pledged to support Hillary Clinton in the 2016 presidential election actually voted for someone else. (They hoped that they could encourage other electors to do the same, and deny Donald Trump the presidency.) The state imposed a $1000 fine for each "faithless elector" for violating their pledge to support the candidate who won the state's popular vote.

The pledge wasn't a problem. The Court in 1952 upheld a pledge requirement, and a state's power to appoint only those electors who would vote for the candidate of the winning political party. But that case, Ray v. Blair, didn't answer the question whether a state could punish a faithless elector.

Today's ruling says yes.

Justice Kagan wrote for the Court. She noted first that the appointment power in Article II, Section 1, authorizes each state to appoint electors "in such Manner as the Legislature thereof may direct." This power to appoint "includes a power to condition [the] appointment--that is, to say what the elector must do for the appointment to take effect," including requiring the elector to pledge to cast a vote in the Electoral College that reflects the popular vote in the state. Then: "And nothing in the Constitution expressly prohibits States from taking away presidential electors' voting discretion as Washington does." In short, "a law penalizing faithless voting (like a law merely barring that practice) is an exercise of the State's power to impose conditions on the appointment of electors."

The Court also wrote that the practice of punishing a faithless elector is consistent with "long settled and established practice." "Washington's law, penalizing a pledge's breach, is only another in the same vein. It reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State's voters have chosen."

Justice Thomas concurred, joined by Justice Gorsuch. Justice Thomas argued that the question isn't answered by Article II (or anything else in the Constitution), and so gets its answer from the federalism formula in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

https://lawprofessors.typepad.com/conlaw/2020/07/supreme-court-says-states-can-punish-faithless-electors.html

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