Supreme Court Rules States Can Punish ‘Faithless Electors’

But that doesn’t mean the Electoral College can’t be reformed.
by Kim Wehle
July 7, 2020
Featured Image
WASHINGTON, DC - JANUARY 04: Congressional clerks pass the Electoral College certificate from the state of Ohio while unsealing and organizing all the votes from the 50 states in the House of Representatives chamber at the U.S. Capitol January 4, 2013 in Washington, DC. The votes were tallied during a joint session of the 113th Congress. President Barack Obama and Biden received 332 votes to be reelected. (Photo by Chip Somodevilla/Getty Images)

The Supreme Court’s unanimous decision yesterday in the so-called “faithless electors” case, Chiafalo v. Washington, brings to mind two tenets of legal education. The first is that there’s a story behind every court decision. The second is that important stuff often appears in the footnotes.

First the story. Once upon a time, in the state of Washington, there were three electors who, according to Justice Elena Kagan’s opinion for the Court, “violated their pledges in the 2016 presidential election.” Recall that Americans do not actually cast votes for president—delegates to the Electoral College do. The Electoral College reflects a compromise among the Framers of the U.S. Constitution, who were wary of enabling Congress to choose presidents but also feared the whims of a mob populace. (This constitutional compromise was entangled with another one: the “three-fifths compromise” for counting enslaved human beings for the purposes of allocating representatives in Congress and electors.)

Article II, Section 1 of the Constitution gives each state as many “electors” as the total number of representatives and senators it has in the Congress. (Since 1961, when the Twenty-Third Amendment was ratified, the District of Columbia also has had three electors.) On Election Day, when voters cast ballots for a Democratic or Republican ticket for president, they are actually voting for a slate of electors chosen by each party. Nearly all the states (and the District of Columbia) have a winner-take-all system: electors are expected to cast electoral ballots for the candidate who receives a plurality of the popular vote. In 32 of the states, there are laws that legally require (often by an oath or pledge) electors to vote for the state winner. And in 15 of those 32 states, electors who ignore that state mandate can be fined or otherwise sanctioned.

In 2016, three renegade electors from Washington took a gamble. Although they had pledged to vote for Hillary Clinton, who won the popular vote in that state on November 3, they instead cast their electoral votes for Colin Powell. The gamble was that electors from other states—states that had gone for the Republican candidate, Donald Trump—might follow suit, ultimately depriving Trump of the 270 electoral votes needed to win and punting the election to Congress. The gamble failed. Only four other electors defected, and Trump became president. Wisconsin fined the three renegades $1,000 apiece.

The legal issue in Chiafalo had to do with the fine—the Supreme Court had already held in 1952 that the Constitution does not give electors full discretion to vote as they please and regardless of state laws governing elections. In Chiafalo, the Court rejected the argument that states are nonetheless constitutionally constrained in how they can enforce laws requiring electors to vote a certain way in the Electoral College. The Constitution leaves all of those details up to the states. Thus, Chiafalo’s primary takeaway is a bedrock principle: The constitutional right to vote in the United States depends on a voter’s zip code. Although Congress has the power to tweak federal elections, it rarely uses it, which means that states hold all the cards when it comes to rolling out elections.

Now for the footnote. In her decision, Justice Kagan does a formidable job explaining the history of the Electoral College—a tutorial that itself is worth a read. But most people—if they are upset at all by the Electoral College—don’t care about faithless electors. They care about the five times in American history that the candidate who won the popular vote did not win the presidency (John Quincy Adams in 1824; Rutherford B. Hayes in 1876; Benjamin Harrison in 1888; George W. Bush in 2000; and Donald Trump in 2020). The reason for this discrepancy is that, in the overwhelming majority of states, all electoral votes go to the candidate who wins a majority or plurality of votes statewide. For example, in 2016 Donald Trump won 49.0 percent of the popular vote in Florida, giving him 100 percent of Florida’s 29 electoral votes. The voters who cast votes for other candidates, including the Democratic nominee Hillary Clinton, were effectively canceled out in the Electoral College.

In footnote 1, Justice Kagan acknowledges but quickly dismisses the fact that the winner-take-all system is not required by the Constitution. In fact, two states don’t use it today: “Maine and Nebraska (which, for simplicity’s sake, we will ignore after this footnote) developed a more complicated system in which two electors go to the winner of the statewide vote and one goes to the winner of each congressional district.” Kagan continues: “So, for example, if the Republican candidate wins the popular vote in Nebraska as a whole but loses to the Democratic candidate in one of the State’s three congressional districts, the Republican will get four electors and the Democrat will get one.”

Put another way, the system used in Maine and Nebraska accounts for minority candidate voters. (Note that these states’ systems fall short of being completely proportional, in which each candidate would, upon reaching a certain threshold, get the proportion of electors that correspond with the proportion of the popular vote that they won. So in Florida, Trump would have gotten only 49 percent of the 29 electoral votes.)

Experts debate whether more states should adopt systems along the lines of those in Maine and Nebraska. On the one hand, alternatives to winner-take-all approaches would strengthen the hand of third-party candidates and prompt the major parties to campaign in more states than just the traditional battlegrounds. They might also align the Electoral College more closely with the popular vote. But critics argue that an influx of third parties would not make all states equally competitive and could send elections into runoffs or, worse, into the hands of Congress. (Another option being floated is the National Popular Vote Initiative, under which states would agree to pledge their electoral votes to the candidate who wins the most popular votes across 50 states, so long as states with a total of 270 Electoral College votes agree. As of today, 15 states and D.C. have joined this initiative—although its constitutionality is debated.)

States can take steps to remedy problems related to the Electoral College without the need for a constitutional amendment that would toss it out altogether. In fact, many problems with voting in America can—and should—be addressed at the state level by state legislators and with sufficient funding by Congress. But that requires two things: widespread civic education so voters know how they can change the system at the ballot box, and political will. Come this November, we are in desperate need of both.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.