The Supreme Court Agrees To Hear 2016 “Faithless Electors” Case (Video)

When former Vice President Al Gore “lost” the 2000 presidential election to then-Texas Gov. George W. Bush after the Supreme Court ordered Florida to stop its contentious re-count,  many argued the Electoral College had finally seen its demise.

But it didn’t.

All the grumbling, rhetoric, and political back-peddling faded until 2016, when, once again, a Republican–Donald Trump–“defeated” Democratic opponent Hillary Clinton by crossing the 270 electoral-vote threshold.

It didn’t matter Clinton attained over three million more popular votes.

The framers of the Constitution did not totally trust “We The People.”

When Americans go to the polls to vote for president, they are not actually voting for a candidate; they are voting instead for a designated group out of 538 electors pledged to specific candidates.

But something interesting happened in 2016.

Ten pledged electors refused to support their states’ popular vote winner.

On Friday, the U.S. Supreme Court agreed to consider in the spring whether states may punish or replace “faithless” electors, and whether the Constitution provides any insight into how they cast their ballots.

According to a filed petition by Peter Bret Chiafalo, Levi Jennet Guerra, and Esther Virginia John, three Washington Democratic Party electors facing fines for not supporting Hillary Clinton:

“It is possible that a presidential election could turn on just a few disputed electoral votes cast in purported violation of state law. It is not entirely clear how that would play out—but there is a very real risk of substantial unrest, or worse, if that does happen.”

A legal brief filed on the matter explains 32 states and Washington, DC require electors to vote for the statewide winner.

Chiafalo, Guerra, and John pledged in 2016 to vote for Clinton.

Yet when the Electoral College convened a month after the election, as the Constitution requires, they all voted for former Secretary of State Colin Powell for president. For vice president, they voted for each Sens. Maria Cantwell (D-Wash.), Susan Collins (R-Maine), and Elizabeth Warren (D-Mass).

When Colorado Democratic elector Michael Baca voted for former Republican Ohio Gov. John Kasich over Clinton, the state counted another elector’s vote, for Clinton, over his.

The 10th Circuit Court of Appeals in Denver agrees electors can vote for any legitimate candidate.

Colorado Secretary of State, Jena Griswold, supports the Supreme Court’s willingness to take up the case, stating:

“Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to voters’ choices and state law.”

Colorado’s 10th Circuit ruled states are free to choose their electors, even requiring them to pledge their loyalty to their respective parties. Once electors are chosen and report in December to cast their votes, however, they are performing a federal function, thereby ending the state’s authority, adding:

“The states’ power to appoint electors does not include the power to remove them or nullify their votes.” 

According to the voting advocacy group FairVote:

“Congress has accepted the vote of every vote contrary to a pledge or expectation in the nation’s history that has been transmitted to it—a total of more than 150 votes across twenty different elections from 1796 to 2016.”

Harvard University law professor Lawrence Lessig explained:

“There is no mechanism for state officials to monitor, control, or dictate electoral votes. Instead, the right to vote in the Constitution and federal law is personal to the electors, and it is supervised by the electors themselves.”

Article II of the Constitution stipulates “each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

The 12th Amendment explains further:

“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President…But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”

There is no language requiring electors to adhere to their political parties’ wishes in lock-step.

Dr. Lessig added:

“The structure of the Constitution, as interpreted by this Court over our 230-year history, prohibits the states from interfering with the exercise of this plainly federal function.”

Equal Citizen’s Jason Harrow said:

“With this petition, we are asking the Supreme Court to resolve a critical question that has gone strangely unanswered for two centuries: Who are presidential electors, and can state officials force them to vote for certain presidential candidates?”

While the Southern slave-holding states were large, most of their populations consisted of slaves, counted only as three-fifths of one white person–and only white men could vote.

Northern states like New York, Massachusetts, and Pennsylvania–although not completely devoid of slaves themselves–were more populous; therefore, it was conceivable they would have more votes, effectively disenfranchising less populated states. The Electoral College “solves” this by granting votes to states based on their number of senators and representatives in the House, not by the number of popular votes cast.

This means California and New York–states that generally vote Democratic–are unable to overshadow smaller states like Delaware and Rhode Island, and less-populated states Wyoming, Montana, and the Dakotas, let alone the mostly Republican Southern states.

The grassroots organization National Popular Vote is dedicated to amending the Constitution to change this.

According to its homepage:

“The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. It has been enacted into law in 16 jurisdictions with 196 electoral votesOR

All 50 states have introduced the National Popular Vote bill, which has now passed 40 state legislative chambers in 24 states, at least one legislative chamber in eight states with 75 electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK), and has been unanimously approved at the committee level in Georgia and Missouri, which carry 27 more electoral votes.

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Ted Millar is writer and teacher. His work has been featured in myriad literary journals, including Better Than Starbucks, The Broke Bohemian, Straight Forward Poetry, Caesura, Circle Show, Cactus Heart, Third Wednesday, and The Voices Project. He is also a contributor to The Left Place blog on Substack, and Medium.