Just in time for the looming presidential election, the Supreme Court has ruled “faithless elector” laws constitutional. The case was unanimously agreed upon by all nine justices, a rarity in the current polarized political climate.
At issue were laws on the books that allowed states to penalize Electoral College electors who failed to vote for the candidate that won the popular vote in the state.
These laws were criticized as unconstitutional by some electors in the 2016 election who chose to cast their votes for candidates that didn’t win the popular election. However, the Supreme Court ruled that laws penalizing electors who don’t vote for the state winner are, in fact, Constitutional. The court cited the “chaos principal,” that it was their job to minimize chaos and confusion.
The Electoral College
Contrary to what some Americans think, the president is not elected by popular vote. Oddly, the Framers of the Constitution envisioned a College of Electorates that would carefully, coldly determine who would be the president. However, not long after the country was founded, in 1796, the Electoral College was bound by oath to vote for the popular winner, not their own conscience.
This odd artifact of a bygone era has had an odd effect on American politics. Twice in the last 20 years, a president who has lost the popular vote has become president.
In a move that runs counter to the principals of direct democracy, electors are the real power when it comes to presidential elections. This has led to an environment where people in more populous states often have votes that count for less than those in less populous states.
Faithless electors are members of the Electoral College who don’t vote along with their state. While this is technically the way the Framers envisioned the College, as a body that could counter the whims of the masses with a reasoned vote, it also flies in the face of the veneer of democracy the organization now has.
It’s unsurprising, then, that the court was unanimous in upholding laws that punish such faithless electors. Justice Alito noted that an Electoral College that didn’t need to vote for the popular winner of their state could “prompt the losing party … 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.”
This decision, coming ahead of the November election, may keep some electors from defying the popular vote in the contentious 2020 presidential race.