Opinion evaluation: Court docket upholds “faithless elector” legal guidelines

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Opinion analysis: Court upholds “faithless elector” laws

Posted on Monday July 6th, 2020 at 1:43 pm by Amy Howe

This morning, the Supreme Court unanimously rejected two constitutional challenges to so-called "unfaithful voters" that punish or remove presidential elections that do not vote for the candidate they are committed to supporting. The decisions came just four months before the 2020 elections.

The Supreme Court heard arguments in two separate disputes in May regarding states' efforts to enforce their treacherous election laws during the 2016 presidential election process. A challenge arose in the state of Washington, where Bret Chiafalo, Levi Guerra and Esther John pledged to support the candidate who won the referendum when they were elected to the state's Democratic Party. But even though Hillary Clinton won the Washington referendum, the three voters wrote votes for someone else – former General and Secretary of State Colin Powell – in the hope that their votes could lead other voters to follow suit, and Donald Trump would eventually vote for one Revoke majority vote in electoral college. The trio's protest votes resulted in nothing more than a fine of $ 1,000 each. Voters argued that the Constitutional College constitution allowed them to vote who they wanted, but the Washington Supreme Court upheld the fines.

The second challenge came from Colorado, where Clinton also won the referendum. Micheal Baca was removed from his position as a voter when he tried to vote for Republican John Kasich, then governor of Ohio, instead. Two other potential voters in Colorado, Polly Baca and Robert Nemanich, finally cast their vote for Clinton. They brought their case to a federal court, where the 10th Circuit Court of Appeals approved them that Colorado's treacherous election law violated the constitution.

In an 18-page statement in which seven of her colleagues took part, Justice Elena Kagan started with a short discussion about the electoral college. When the Americans cast their votes for a presidential candidate, Kagan reminded us that they are not really voting for the president. Instead, they select members of the electoral college appointed by each state based on the outcome of the vote, and then elect the president when the electoral college meets in December. Kagan then told the story of the presidential election with a discussion that included references to the TV show "Veep" and the Broadway hit "Hamilton". "In the 20th century," she continued, "many states have passed laws to ensure that voters vote for the right candidate by pledging to support the party's victorious candidate." "So far, 32 states and the District of Columbia have such laws on their books." And about 60 years ago, some states – currently a total of 15 – enacted laws to give teeth to their "pledging laws" by removing treacherous voters from their position and "replacing a proxy instead whose voice the state reports". Like Washington, some of these states are good voters who break their promise.

The constitution, Kagan stressed, "is barebones over voters." It only requires states to appoint voters to meet and cast ballots for the president, which will then be sent to Washington. "These sparse instructions," she continued, "did not take a stand on how independent or how faithful voters should be with regard to party and popular preferences." Nothing in the Constitution "explicitly prohibits states from losing the right to vote in the presidential election like Washington."

Since the constitution itself had little to answer the question, Kagan then turned to history, as the Supreme Court has long done when interpreting a provision in the constitution. And for Kagan, historical practice seemed to fill the gaps quite well. "Voters," she said, "have rarely exercised discretion in casting their presidential ballot papers." Instead, she said that from the start, states had no intention of voting for voters who would be "free agents" and make their own decisions about the best candidate. Rather, she stressed that states wanted voters to cast ballots for their party's candidates that reflect the will of the people.

Kagan dismissed the story that voters supported as "just one of the anomalies". There were only 180 "unfaithful" votes out of over 23,000 votes cast, and more than a third of them can be traced back to an election in which the Democratic Party candidate died shortly after election day 1872 "you concluded," unfaithful votes only one half percent of the total. "

Judge Clarence Thomas submitted a separate statement (partially linked to Judge Neil Gorsuch) in which he agreed with the other colleagues that the treacherous electoral laws were constitutional, even if he disagreed with the majority's reasoning. Since Thomas believes that the Constitution says nothing about whether states have the power to require voters to vote for the candidates they are committed to supporting, he would comply with the law on the grounds that all powers that the constitution does not expressly grant The federal government or take away from the federal states belong to the federal states.

The Supreme Court separately heard the hearing in the Colorado lawsuit after Justice Sonia Sotomayor withdrew from the case due to a personal relationship with one of the voters, Polly Baca. In a one-sentence, unsigned statement released today, the judges also overturned the 10th Circle's decision to uphold Colorado's treacherous election law "for the reasons stated in Kagan's Washington statement."

Today's decisions leave the current system in place. States like Washington and Colorado that have treacherous electoral laws can continue to enforce them. At the oral presentation in May, several judges were vocal about the possibility that voters could be disenfranchised and chaos could arise if voters could choose who they wanted – a particularly undesirable prospect in a tight election. In the past few weeks, election law experts have pointed out that we may not know the winner of the 2020 presidential election until after election day on November 3, as it will take some time to process the postal vote. However, due to today's decisions, the tension is likely to be significantly reduced when the electoral college meets in December to officially elect the president.

This entry was originally published on Howe on the Court.

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Posted in Colorado Department of State vs. Baca, Chiafalo vs. Washington, Featured, Merits Cases

Citation recommendation:
Amy Howe,
Opinion analysis: The court upholds the laws of "unfaithful voters".
SCOTUSblog (July 6, 2020, 1:43 p.m.),
https://www.scotusblog.com/2020/07/opinion-analysis-court-upholds-faithless-elector-laws/