Supreme Court grapples with 'faithless electors' and Electoral College

Supreme Court grapples with 'faithless electors' and Electoral College
© Greg Nash

The Supreme Court on Wednesday grappled with the issue of “faithless electors,” and many of the justices appeared uncomfortable with the idea of unleashing Electoral College representatives to disregard the popular vote in their states.

The court heard oral arguments by teleconference in a pair of cases challenging state laws that require the electors to cast votes for presidential candidates who won the popular vote in their state.

Several justices seemed concerned about the prospect of prohibiting states from mandating electors adhere to election results. Some predicted “chaos” in the election system and worried about the potential for corruption.


“Those who disagree with your argument say that it would lead to chaos,” Justice Samuel AlitoSamuel AlitoBiden official withdraws last-minute Trump LGBT memo LIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Barrett hears climate case against her father's ex-employer Shell MORE told one of the lawyers for the electors. “That where the popular vote is close and changing just a few votes would alter the outcome or throw it into the House of Representatives — the rational response of the losing political party or elements within 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.”

Justice Clarence ThomasClarence ThomasLIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Trump eyes lawyer who spoke at rally to help in impeachment trial: report Biden's identity politics do a disservice to his nominees MORE inquired about mechanisms for enforcement.

“Can a state remove someone who openly solicits payments for his or her vote?” Thomas asked.

Lawrence Lessig, a Harvard law professor and activist arguing on behalf of electors from Washington state, said that the framers intended for electors to have discretion over who they vote for and argued that the risk of rogue electors throwing elections is small.

"If electors have the discretion we believe they've always had, we suggest the likelihood of that is tiny given it requires electors who are the loyal of the loyal to band together in dozens — or you know three dozen in the last election — and flip sides," Lessig said.


Lessig is an outspoken critic of the Electoral College and he's been open about his effort to discredit the system by pushing the Supreme Court to allow faithless electors.

Still, Lessig and Jason Harrow, who argued on behalf of Colorado electors, say that they believe their reading of the Constitution is correct when it comes to the electors, and they accused the states of overreaching in trying to control their own representatives.

"The states have a problem with the idea of an Electoral College and they want to write it out," Harrow said. "Perhaps we would be better off without indirect election, because this months-long multi-step process of presidential selection presents some risk of instability, no matter who wins this case. But until we have an article five amendment, the vote of real humans, called presidential electors isn't going away. To make sure the system we have works sensibly, given the constitution we have now when those human electors do vote by ballot, they must be permitted to do so with discretion."

How the court decides the cases could have serious implications for the November election. Colorado and Washington warned the court that siding with the electors could upend how states administer elections and eliminate the ability of voters to choose the president.

"More Americans participate in this election than in any other democratic process in our system of government," said Noah Purcell, Washington's solicitor general. "But under petitioners’ theory, this entire process is irrelevant and always has been because all that matters is who the electors prefer. In their view, the electors can choose whoever they want to be president, regardless of any voluntary commitments they made to secure their position, regardless of how their state voted and regardless of whether they are being bribed or blackmailed for their vote."

The two cases arose from electors challenging laws in Colorado and Washington that forbid them from casting votes for presidential candidates other than the winner of the state's popular vote. Both cases involve electors who refused to vote for 2016 Democratic presidential nominee Hillary ClintonHillary Diane Rodham ClintonBiden must wait weekend for State Department pick Texas Supreme Court rejects Alex Jones request to toss lawsuits from Sandy Hook parents Paris Agreement: Biden's chance to restore international standing MORE, who bested President TrumpDonald TrumpNYT: Rep. Perry played role in alleged Trump plan to oust acting AG Arizona GOP censures top state Republicans McCain, Flake and Ducey Biden and UK prime minister discuss NATO, multilateralism during call MORE in those states.

In Washington, three electors were each fined $1,000 for voting for former Secretary of State Colin PowellColin Luther PowellWhite supremacists endanger the military on the battlefield The challenge of Biden's first days: staying focused and on message Colin Powell: 'I can no longer call myself a fellow Republican' MORE. In Colorado, an elector was removed from his position for voting for former Ohio Gov. John Kasich (R).

While the two cases are related, the court is considering them separately. Justice Sonia SotomayorSonia SotomayorA Day in Photos: The Biden Inauguration Barbara Lee dons Shirley Chisholm's pearls for Inauguration Day: 'Because of Shirley Chisholm, Vice President Harris is' Biden sworn in on family Bible his son Beau used MORE recused herself from the Colorado case because she is friends with one of the electors who sued.

The court is expected to issue a decision by the end of June.

Updated at 1:47 p.m.