02:02 - Source: CNN
What is the Electoral College?

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Washington CNN  — 

Several Supreme Court justices seemed ready to rule Wednesday that states can penalize presidential electors who fail to fulfill a pledge and vote for a state’s popular vote winner in the Electoral College.

Arguments spanned over two hours with the justices delving into history and discussion ranging from Alexander Hamilton to Frodo Baggins.

By the end of arguments, some justices seemed prepared to reject arguments from lawyers for so-called faithless electors and hold that states can bind their vote.

The case comes as the election season is heating up and the Electoral College will once again be front and center in an increasingly polarized and volatile political atmosphere.

In 2016, 10 of the 538 presidential electors went rogue, attempting to vote for someone other than their pledged candidate.

During oral arguments, held over the phone because of the coronavirus, justices on all sides of the ideological spectrum expressed skepticism that states are not permitted to penalize an elector if he or she failed to fulfill their pledge. Two justices, Samuel Alito and Brett Kavanaugh, worried that if a faithless elector’s pledge could not be enforced by the state, chaos might ensue after the election.

Alito expressed a fear of a “massive campaign” after an election to try to influence electors.

“Do you deny that is a good possibility if your argument prevails?” Alito asked a lawyer representing faithless electors in the case. Kavanaugh suggested he favored “an avoid-chaos” principle where courts shouldn’t facilitate chaos.

Kavanaugh also worried that if a state were unable to enforce the pledge made by an elector, voters might be disenfranchised. Justice Sonia Sotomayor also pressed the point questioning why an elector who broke a pledge couldn’t be penalized.

Justice Ruth Bader Ginsburg did emphasize that faithless voting has been “rare” and asked Colorado’s Attorney General Philip Weiser what the consequences would be if the state were not allowed to enforce its law that binds electors.

Weiser responded a loss for the states could “occasion a constitutional crisis,” noting that a state would not have the ability to remove electors – even those who had been bribed.

Chief Justice John Roberts pressed both sides if there were limits to their positions and seemed particularly concerned with a lawyer for the faithless electors who suggested there were none.

“An elector can decide ‘I’m going to flip a coin, and whichever way it comes down, I’m going to vote?’ ” Roberts asked with skepticism.

Later in the argument, Justice Clarence Thomas expressed a similar concern noting that electors would be free to vote for anyone they wanted without recourse including Frodo Baggins, one of the hobbits in The Lord of the Rings trilogy.

In all, 32 states and the District of Columbia have laws that are meant to discourage so-called faithless electors. But until 2016, no state had ever actually punished or removed an elector because of his or her vote. Now, those on both sides of the issue believe the justices should settle the question.

“This has become a big deal because there is a large risk that for the third time in this century the popular vote winner and the electoral vote winner will be different people,” said Reed W. Hundt, who runs a foundation called Making Every Vote Count.

Three presidential electors in Washington state, for example, voted for Colin Powell in 2016 rather than Hillary Clinton and one voted for anti-Keystone XL pipeline protester Faith Spotted Eagle. A $1,000 fine was upheld by the state Supreme Court.

The US Constitution, the court held, “grants the states plenary power to direct the manner and mode of appointment of electors to the Electoral College.”

In Colorado, the legal outcome was different when Micheal Baca voted for Ohio Republican Gov. John Kasich instead of Clinton.

Baca’s vote was rejected and he was removed and replaced with a substitute who voted for Clinton. Baca was referred for potential perjury prosecution, although no charges were filed. He filed suit, and ultimately won when the 10th US Circuit Court of Appeals held that while the state does have the power to appoint electors, that does not extend to the power to remove.

The Constitution, the federal court held, “does not provide the states the power to interfere with the electors’ exercise of their federal functions.”

Potential impact of faithless electors

In all there is an elector for every member of the House of Representatives and the Senate plus an additional three for people who live in the District of Columbia. It takes 270 votes to get a majority of the Electoral College. If there is a tie or nobody gets to the majority, then the election goes to the House of Representatives.

It’s never happened, but in theory a so-called faithless elector could swing the presidency.

For instance, it would have taken only two Republican electors to have voted for someone besides George W. Bush in 2000 to potentially change the outcome. His total vote of 271 would have slipped to 269 and the election would have gone to the House.

“Before the upcoming election, the Supreme Court needs to tell states what’s permissible: Either they can punish or require electors to vote a certain way or they can’t,” Hundt said.

To Lawrence Lessig, the Harvard Law professor behind the challenges at the Supreme Court on Wednesday, the answer was clear that while the state has the power to appoint a slate of presidential electors who are members of the same party as the ticket that wins the popular vote, those electors, once appointed, can cast their votes however they like.

Lessig said in court papers that the Constitution “requires that presidential electors be free to cast votes without interference or sanction.”

He’s worried that if the Supreme Court were to allow the states to step in to penalize the electors, it could have unexpected consequences. For instance a state might feel free to take more drastic steps, including passing laws to bar an elector from voting for a candidate who has not released a copy of his tax returns.

Election law expert Rick Hasen said it’s a “risky” position to take. Hasen noted that since 2016, Democrats have been critical of the Electoral College, saying that it doesn’t always reflect the will of the people. Some Republicans have defended the institution as protecting the power of small states.

“Whether or not one likes the anti-democratic nature of the Electoral College, it’s not clear that a Supreme Court decision giving electors the chance to vote their consciences would cause enough of a bipartisan revolt to cause constitutional change to the institution,” Hasen said. “Instead, it could lead to a situation where we have weeks of uncertainty as people pressure electors in a close presidential race to change their votes.”

This story has been updated with details of oral arguments.