When the Supreme Court reopens a new session in October, awaiting the Justices in the pile of work that built up over their summer recess will be a major constitutional case over how America elects its President. It is a dispute as current as the last election, in 2016, when seven members of the Electoral College did not vote the way they were instructed to do.
Their votes did not change the outcome of President Trump’s victory in the Electoral College.
A deep split over whether those 2016 electors acted illegally, or whether they had a constitutional right to do what they did, has now developed in lower courts. A split like that often enhances the prospect that the Justices will feel a duty to step in and provide a definite answer.
Over the nation’s more than two centuries of constitutional history, only a total of 67 presidential electors voted against their party’s nominee. Their refusal to go along is so unusual that no presidential election has ever been changed because of such maverick voters. That may not hold true in a future election in this deeply divided nation. The risk is at least as great as it was in 2000 when a switch of four votes would have taken away George W. Bush's victory and put Al Gore in the White House.
The electors’ lockstep following of instructions throughout history has been the source of much criticism of the Electoral College, the most peculiar of all of America’s governing institutions – and actually one of the least truly representative of the nation’s people.
Perhaps no critic has hit harder than the late Supreme Court Justice, Robert H. Jackson.
In a dissent in a 1952 case, Jackson wrote that Presidential electors, “although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire: ‘They always voted at their Party’s call, and never thought of thinking for themselves at all.’”
That 1952 case, Ray v. Blair, actually was the Supreme Court’s most recent examination of state controls on presidential electors, and there is now deep debate over whether it settled the constitutionality of an elector who (in a word that the political parties prefer) had been “faithless.”
The significance of the 1952 decision in today’s electoral world is at the very center of the new case that is to reach the Supreme Court imminently.
A Harvard law professor, Lawrence Lessig, told the Court earlier this month that he will soon file an appeal in a Washington State case involving three 2016 Democratic presidential electors who were each fined $1,000 for failing to vote for their party’s nominee, Hillary Clinton. Because Clinton won the statewide popular vote in that state, those three electors violated a state law that required them to pledge to vote for the statewide winner in the Electoral College. Instead, they voted for a famous general and former U.S. Secretary of State, Colin Powell.
That case involves a ruling in May by the Washington State Supreme Court, in which an 8-1 majority said the issue of presidential elector deviation from instructions was settled against such voters by the decision in Ray v. Blair nearly seven decades ago.
The majority in the Washington case declared that “the Constitution confers broad authority on the states to dictate the manner and mode of appointing Presidential elector.” It added that this broad authority was reaffirmed in the Ray decision, which upheld an Alabama law that required a pledge of loyalty to the party’s nominee before a Presidential elector could even seek that office.
The Ray decision, according to the majority, “rests on a rejection of [the 2016 electors’] position that the Twelfth Amendment demands absolute freedom for presidential electors.”
Professor Lessig, in promising an appeal from that decision, told the Supreme Court that he would “move quickly” to do so once another court dealing with the same constitutional issue had announced its ruling. The other court, handling a case involving 2016 electors in Colorado, is the U.S. Court of Appeals for the Tenth Circuit.
The Tenth Circuit Court released its decision last Tuesday. By a 2-to-1 vote, it ruled that, once an elector goes to the Electoral College to cast a vote after a Presidential election, the state from which that elector came loses all power to control how the elector did vote.
It also ruled, in its 114-page majority opinion, that those who drafted the original Constitution and the 12th Amendment (changing the Electoral College process) intended that presidential electors would use their own discretion in deciding how to vote. The words of the Constitution itself, the opinion said, “imply the right to make a choice or voice an individual opinion….Electors, once appointed, are free to vote as they choose.”
While the Constitution gives states broad power to choose the method of selecting Presidential electors, that power does not include the authority to remove them and cancel their vote if they do not support the statewide winner, the majority ruled.
It said that the Supreme Court’s decision in the Ray case dealt only with the qualifications for running in a primary election for the post of Presidential elector, and thus did not uphold the power of the state beyond the initial appointment once an elector has gone to the Electoral College and voted. Once that vote has been cast, it remains valid and must be reported to Congress when all Electoral College votes are tallied, the majority concluded. “The Constitution does not provide the power to interfere once voting begins [among the electors],” it said.
That ruling involved only one 2016 Colorado elector, Democrat Michael Baca, because the Circuit Court found that he was the only one of three electors who had the right to sue in this case. After being warned by a state official that state law required him to vote for the statewide winner (Hillary Clinton), and after Baca took an oath to do so, he actually cast his vote instead for John Kasich, then the Ohio Republican governor. A state official canceled that vote and named a new elector, who voted, as instructed, for Clinton.
The two other Colorado electors who joined Baca in the lawsuit had seen what had happened to him, and went ahead, despite their own wishes, and voted for Clinton. The Circuit Court found no right to sue for those two.
Baca, in suing, sought only $1 in damages, as a symbol of victory if he did win. A federal trial court will now decide if he is entitled to that or any other remedy.
With the Tenth Circuit’s ruling now out, and with its creation of a direct split with the ruling in May by the Washington Supreme Court, Professor Lessig presumably will be filing his appeal shortly in the Washington case. State officials handling the Colorado case have said they are studying whether to appeal in that case.
Equal Citizens, a Massachusetts-based election reform advocacy group, joined with Professor Lessig in pursuing the two lawsuits by electors. That organization is also involved in promoting broader changes in the presidential election process, and it has argued that victory in the electors’ cases will help promote the idea of that wider agenda.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.