(Bloomberg) -- The U.S. Supreme Court agreed to decide whether states can penalize members of the Electoral College if they refuse to vote for the presidential candidate who won the statewide vote, taking up an issue that could affect the outcome of a tight election.
Accepting cases from Washington and Colorado, the justices will consider whether electors have a constitutional right to vote as they please, even if that means bucking the will of the state’s voters.
The court will probably hear arguments in April and rule by late June, before the November presidential election. Litigants in the two cases had urged the justices to resolve the issue now to ensure it won’t arise in the middle of a disputed election.
“Having the U.S. Supreme Court resolve this critical question about the foundation of our democracy before the 2020 election will avoid the uncertainty, chaos and confusion that would arise in the wake of post-election litigation,” Colorado Attorney General Phil Weiser said in a statement.
Electors are appointed to the Electoral College only if their party’s candidate wins, and the broad expectation is that they will support that candidate. But in 2016, 10 “faithless electors” voted, or tried to vote, for someone other than Donald Trump or Hillary Clinton. Only nine electors had voted for someone other than their party’s candidate from 1900 to 2012.
About 30 states attempt to bind electors to the winning candidate, though some of those states don’t penalize people who cast deviant votes.
Each state’s number of electors is equal to its representation in Congress -- two senators plus members of the House. Almost all states use a winner-take-all system, in which the candidate who wins the state’s popular vote is entitled to the full slate of electors. Two states, Nebraska and Maine, have systems that can produce a split electoral vote.
Lower courts are divided on whether states can enforce a requirement that electors vote for the state’s top vote-getter. A federal appeals court ruled that Colorado violated the Constitution when it removed Michael Baca as an elector and canceled his vote. Baca, a Democratic elector, had voted for Republican John Kasich instead of Clinton, who won the statewide vote.
The Washington Supreme Court, however, upheld $1,000 fines imposed on three people who voted for former Secretary of State Colin Powell instead of Clinton.
The Supreme Court ruled in 1952 that states could require electors to support their party’s nominee, but the court has never said what, if any, enforcement steps states can take.
The electors in the Colorado and Washington cases say the Constitution’s 12th Amendment provides detailed instruction on how the electoral vote proceeds, precluding state interference once the electors are appointed.
“The use of the words ‘elector,’ ‘vote,’ and ‘ballot’ plainly require that presidential electors be permitted to do their work without interference or coercion,” the Washington electors argued. They also say the First Amendment guarantees electors the right to vote as they please.
Colorado and Washington say the electors are misreading the 12th Amendment.
“Nowhere does the amendment purport to confer unbridled discretion on electors,” Colorado argued. The state said electors are “mere ministerial officers who transmit the ballots of their state, not their own ballot.”
Washington said the Supreme Court has interpreted Article II of the Constitution and the 12th Amendment as “granting states plenary power to regulate electors.”
History of Support
Although the Constitution’s framers assumed electors would exercise independent judgment, the longstanding historical practice has been that electors almost always support their party’s candidate.
Washington urged the Supreme Court not to hear its case, but Colorado and the electors in both cases sought a hearing.
“We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections,” said Lawrence Lessig, a Harvard Law School professor representing both groups of electors.
Washington changed its law last year so that electors would be removed, rather than fined, and their votes canceled, much like in Colorado.
The cases are Chiafalo v. Washington, 19-465, and Colorado Department of State v. Baca, 19-518.
(Updates with reaction starting in fourth paragraph)
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