In a pair of cases involving so-called faithless electors, the high court unanimously ruled that states have the constitutional power to force people elected to serve in the Electoral College to cast their official ballots for president in accordance with their state's popular vote. States, in other words, can prevent the electors from “going rogue” — as several did in 2016 by casting ballots for Colin Powell, John Kasich and Faith Spotted Eagle.
Thus, if the court has its way, there will be no risk of a faithless elector being a wild card in this year's election. Unfortunately, it is not so simple. The justices’ ruling permits states to prevent faithless electors,
but it does not require that they do so.
In a pair of cases involving so-called faithless electors, the high court unanimously ruled that states have the constitutional power to force people elected to serve in the Electoral College to cast their official ballots for president in accordance with their state's popular vote. States, in other words, can prevent the electors from “going rogue” — as several did in 2016 by casting ballots for Colin Powell, John Kasich and Faith Spotted Eagle.
The court clearly was motivated by a desire to avoid destabilizing the system as much as possible. The justices announced as much at the time of oral argument. Justice Brett Kavanaugh, for example, invoked “the avoid-chaos principle of judging,” which he took to mean that the court should not interpret the Constitution “to facilitate or create chaos” if there is a way to interpret it otherwise. Many states still allow 'going rogue'
Monday’s ruling followed through on that approach. Justice Elena Kagan, writing for the court, acknowledged that at the beginning of the republic there was some expectation that electors would exercise independent judgment. But she explained that the actual text of the Constitution does not compel that electors have this autonomy.
She also observed that the original expectation quickly disappeared and soon the contrary expectation developed: that electors would be loyal to their own political parties and thus conform their votes to their party’s presidential nominee. The court was entitled, she explained, to construe the Constitution in accordance with this subsequent practice and thereby have the system act as Americans now generally assume it does.
Only 32 states have laws attempting to bind electors to the state’s popular vote, and not all of them discount the deviant vote. And 18 states still have laws giving electors the freedom to vote independently if they so choose. Thus, absent change between now and November, there is the risk of chaos injecting itself into the system despite the court’s decision. As a practical matter, this particular risk is small. But it is not zero.
Suppose former Vice President Joe Biden wins the popular vote in enough states for an Electoral College victory, but only by counting vote-by-mail ballots — the kind of ballots that President Donald Trump and Attorney General William Barr have denounced (without substantiation) as inherently unreliable.
Imagine, then, Trump and Barr persuading the legislatures of enough states to appoint electors who will vote for Trump, in opposition to the certified popular vote based on the counting of vote-by-mail ballots. That kind of dispute could reach Congress on Jan. 6, with lawmakers ill equipped to handle it because of inadequate existing procedures.
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