Binding faithless electors

WASHINGTON—The U.S. Supreme Court ruled on Monday that presidential electors may not act as free agents and must vote for the candidate a state’s voters choose. The unanimous decision means states with laws forbidding so-called “faithless electors” are constitutionally allowed to remove or fine delegates who go rogue.

The two cases stem from 2016, when four “faithless electors” from Colorado and Washington sued their states. They argued that individual electors have agency and discretion in how they vote and that states only have the authority to decide how to choose delegates.

The high court disagreed.

“Nothing in the Constitution expressly prohibits states from taking away presidential electors’ voting discretion as Washington does,” Justice Elena Kagan wrote for the court.

In Colorado, elector Michael Baca voted for former Ohio Gov. John Kasich instead of former Secretary of State Hillary Clinton, who won the state’s popular vote. In Washington, three electors voted for former Secretary of State Colin Powell rather than Clinton. They wanted to recruit Republican electors to join them and deny then-candidate Donald Trump the presidency. The Washington delegates faced fines, while Colorado removed Baca.

If the court had ruled against the states, individual electors potentially could have changed the outcome of a close race. Monday’s ruling builds on the high court’s 1952 decision that states can require electors to pledge to abide by the popular vote.

During oral arguments in the case, Justice Samuel Alito said in a tight popular vote, allowing faithless electors would “prompt the losing party … to launch a massive campaign to try to influence electors.”

Currently, 32 states have some laws governing electors’ behavior. Sixteen states have laws on the books to remove, penalize, or cancel the votes of wayward delegates to the Electoral College.

The justices separated the two cases, Chiafalo v. Washington and Colorado Department of State v. Baca, even though they dealt with essentially the same issue. Justice Sonia Sotomayor personally knew a challenger in the Colorado case and separating them allowed her to recuse herself from one and not the other.

Each state’s number of electors is equal to its number of representatives in Congress. Nearly all require their electors to cast their ballots for whichever candidate wins the state’s popular vote. Nebraska and Maine use a congressional district method that allocates two electoral votes to the state popular vote winner and one to the popular vote winner in each congressional district. This opens up the possibility of a split electoral vote.