Washington and any other state may pass laws ensuring that presidential electors vote for the presidential candidate that their state’s voters choose, the U.S. Supreme Court ruled Monday.
“Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does,” Justice Elena Kagan wrote for the court, which ruled 9-0 against the three Washington faithless electors who brought the case. “The Constitution is bare-bones about electors.”
The case dates back to the 2016 election, when the three electors, Bret Chiafalo, Esther “Little Dove” John and Levi Guerra, cast their electoral ballots for Colin Powell, not Hillary Clinton, in a last-ditch attempt to try to get Republican electors to abandon Donald Trump.
All of Washington’s electors had signed a pledge to support the candidate that got the most votes, so Chiafalo, John and Guerra were fined, under state law, $1,000. (A fourth Washington elector, Robert Satiacum, also broke his pledge and did not vote for Clinton, but he was not involved in the court case.)
For three and a half years, they fought that fine through the court system, all the way to the Supreme Court. At stake was much more than a $1,000 fine. Rather, it was a question that had never been definitively answered in the more than 230 years since the Electoral College was created: Can presidential electors vote for whomever they want, or can states ensure they follow voters’ will?
The case had the potential to throw the 2020 presidential election into unprecedented chaos. In a close election, just a couple of electors going rogue and switching their votes has the potential to flip the election, despite the tens of millions of ballots cast by regular voters.
But the court Monday found that the U.S. Constitution gives states “far-reaching authority” over electors, making such a scenario now all but unthinkable.
The Constitution gives states the authority to appoint presidential electors, which the court found also gives states great control over the electors.
“The power to appoint an elector (in any manner) includes power to condition his appointment — that is, to say what the elector must do for the appointment to take effect,” Kagan wrote for the court. “A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist … that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote.”
Justice Clarence Thomas reached the same conclusion, but wrote a separate concurring opinion joined, in part, by Justice Neil Gorsuch. Thomas wrote that the 10th Amendment, which grants powers not delegated in the Constitution to the states, permits states to impose restrictions on electors.
Washington, after the 2016 election, strengthened its law so faithless electors are removed and replaced with an alternate if they don’t follow the will of the voters.
Washington Attorney General Bob Ferguson, whose office defended the state in the case, said the Supreme Court “reaffirmed the fundamental principle that the vote of the people should matter in choosing the president.”
“If we had not been successful, many observers, including several justices, noted the upcoming elections could have been thrown into ‘chaos,'” Ferguson wrote.
Washington Secretary of State Kim Wyman’s office wrote that the ruling “confirms the state has a responsibility to ensure the electors chosen must honor their pledge to represent the outcome of the state’s popular vote.”
In fighting their fines through the court system, Chiafalo and John also had a larger goal: Blow up the Electoral College. Their goal was a Supreme Court ruling saying electors could vote however they want, with states powerless to stop them. Such a ruling, they thought, would be viewed as so absurd that there would be a popular uprising to change the Constitution, ditch the Electoral College and embrace the national popular vote as a better method for choosing a president.
Chiafalo, in an interview Monday, said that cause was still advanced, even though they lost unanimously.
“Anything that brings the Electoral College to the forefront of discussion for Americans is completely a win,” he said. “Electors are effectively robots now, so it begs the question, why the hell do we have the Electoral College? Because it only serves the function of giving voters in small states undue power.”
Thirty-two states and the District of Columbia have a law that requires presidential electors to vote for the candidate the state’s voters chose. But fewer than half of those states have any enforcement mechanism.
Lawrence Lessig, co-founder of the nonprofit Equal Citizens that represented the three electors in court, said they disagree with the court’s ruling but are glad the question has finally been settled.
“Regardless of the outcome, it was critical to resolve this question before it created a constitutional crisis,” Lessig said. “We are happy that we have achieved our primary objective — this uncertainty has been removed. That is progress.”
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