What happens in the faithless elector cases?

[brucejoel99]

Baca & Chiafolo, taken together, give the court 4 (not 2) options:

1. Electors have an absolute right to vote however they want. States can't restrict their votes & can't punish them based on how they vote. Baca et al. & Chiafolo et al. win.

2. Electors have an absolute right to vote however they want, but states can punish them based on how they vote (subject to due process, viewpoint neutrality, etc.). Baca et al. still win, while Washington wins the other case.

3. States can do whatever they want to electors, up to & including making the position purely ceremonial, as Colorado does. But if they choose to make it a theoretically free vote, they can't punish people for voting wrong. Colorado wins, Chiafolo et al. win.

4. States can do whatever they want to electors, up to & including making the position purely ceremonial. They can punish electors who break ranks. Colorado & Washington both win.

I really have trouble seeing how Colorado's regime is compatible with the 12th Amendment. At the end of the day, an elector needs to have the option to vote for whomever they want.

It becomes more complicated with Washington, & the many states like it, where the punishment doesn't cancel out the vote. Generally, one would say that fining people for voting the wrong way is wrong. But most people don't cast votes having pledged to vote a certain way. I think if a state actually has somebody swear an oath that they'll vote for their pledged candidate (& I'm not sure how many states do put the pledge as part of an oath), then it should be fair game to fine that person for committing what would essentially be a high crime or misdemeanor. You could even categorize it as contempt of the legislature.

[brucejoel99]

Baca & Chiafolo, taken together, give the court 4 (not 2) options:

1. Electors have an absolute right to vote however they want. States can't restrict their votes & can't punish them based on how they vote. Baca et al. & Chiafolo et al. win.

2. Electors have an absolute right to vote however they want, but states can punish them based on how they vote (subject to due process, viewpoint neutrality, etc.). Baca et al. still win, while Washington wins the other case.

3. States can do whatever they want to electors, up to & including making the position purely ceremonial, as Colorado does. But if they choose to make it a theoretically free vote, they can't punish people for voting wrong. Colorado wins, Chiafolo et al. win.

4. States can do whatever they want to electors, up to & including making the position purely ceremonial. They can punish electors who break ranks. Colorado & Washington both win.

I really have trouble seeing how Colorado's regime is compatible with the 12th Amendment. At the end of the day, an elector needs to have the option to vote for whomever they want.

It becomes more complicated with Washington, & the many states like it, where the punishment doesn't cancel out the vote. Generally, one would say that fining people for voting the wrong way is wrong. But most people don't cast votes having pledged to vote a certain way. I think if a state actually has somebody swear an oath that they'll vote for their pledged candidate (& I'm not sure how many states do put the pledge as part of an oath), then it should be fair game to fine that person for committing what would essentially be a high crime or misdemeanor. You could even categorize it as contempt of the legislature.

I can’t imagine each case being decided differently. The cases were taken to resolve a circuit split.

Did you even do a second of research on these cases before you posted about them here on Atlas? Because what you can or can't imagine is irrelevant, considering the Court already confirmed more than 2 months ago that the previously consolidated cases will now be separately decided on account of Sotomayor's need to recuse herself from Baca but not from Chiafolo.

And the only reason they're able to do that is because the two cases present distinct issues. Of course, one wonders if they wouldn't have accepted Baca if they'd known it'd go before an 8-Justice court. It'd certainly be awkward if Sotomayor turned out to be the decisive vote in Chiafolo, with reasoning that wouldn't apply to Baca, only for Baca to tie 4-4 when it clearly would've otherwise gone 5-4 the other way.

[brucejoel99]

Baca & Chiafolo, taken together, give the court 4 (not 2) options:

1. Electors have an absolute right to vote however they want. States can't restrict their votes & can't punish them based on how they vote. Baca et al. & Chiafolo et al. win.

2. Electors have an absolute right to vote however they want, but states can punish them based on how they vote (subject to due process, viewpoint neutrality, etc.). Baca et al. still win, while Washington wins the other case.

3. States can do whatever they want to electors, up to & including making the position purely ceremonial, as Colorado does. But if they choose to make it a theoretically free vote, they can't punish people for voting wrong. Colorado wins, Chiafolo et al. win.

4. States can do whatever they want to electors, up to & including making the position purely ceremonial. They can punish electors who break ranks. Colorado & Washington both win.

I really have trouble seeing how Colorado's regime is compatible with the 12th Amendment. At the end of the day, an elector needs to have the option to vote for whomever they want.

It becomes more complicated with Washington, & the many states like it, where the punishment doesn't cancel out the vote. Generally, one would say that fining people for voting the wrong way is wrong. But most people don't cast votes having pledged to vote a certain way. I think if a state actually has somebody swear an oath that they'll vote for their pledged candidate (& I'm not sure how many states do put the pledge as part of an oath), then it should be fair game to fine that person for committing what would essentially be a high crime or misdemeanor. You could even categorize it as contempt of the legislature.

I can’t imagine each case being decided differently. The cases were taken to resolve a circuit split.

Did you even do a second of research on these cases before you posted about them here on Atlas? Because what you can or can't imagine is irrelevant, considering the Court already confirmed more than 2 months ago that the previously consolidated cases will now be separately decided on account of Sotomayor's need to recuse herself from Baca but not from Chiafolo.

And the only reason they're able to do that is because the two cases present distinct issues. Of course, one wonders if they wouldn't have accepted Baca if they'd known it'd go before an 8-Justice court. It'd certainly be awkward if Sotomayor turned out to be the decisive vote in Chiafolo, with reasoning that wouldn't apply to Baca, only for Baca to tie 4-4 when it clearly would've otherwise gone 5-4 the other way.

There will only be one actual merits ruling, Chiafolo. The judgment in Baca will likely be vacated in light of Chiafolo.

Correction: it's possible that Baca will be vacated in light of Chiafolo. One can't assume that the Court won't reach merits decisions in both cases until the Court actually decides to, y'know, not reach merit decisions in both cases, & the Court hasn't given any indication as to what it'll do.

Now, I know we've talked about this on here before, but by this point, haven't you - of all people - learned to stop making assumptions when it comes to Court decisions?

[brucejoel99]

This is worthy of a bump in light of oral arguments having been a couple days ago.

[snip]

Yeah, it definitely sounds like they're gonna side with the states.

Might have to dust off Thomas' dissent in U.S. Term Limits, as I got the vibe that a lot of the language will be borrowed from there in the majority opinion, given a lot of the talk was about the 10th Amendment & how the Constitution is silent on the issue.

(Speaking of Thomas, did anybody else's head tilt when - after decades of mostly silence - he started asking about Frodo Baggins in his hypothetical? I can't believe we've been robbed of decades of hysterical Thomas hypotheticals lol, he needs to jump into the fray more!)

What particularly got me, though, was all of the conservative justices worrying about bribery of our electors. Where was that concern over bribery of our electors during the campaign finance cases? Suddenly, NOW the justices want to save the Constitution from itself? If one pretends to support original intent, then the answer to this case should be eminently obvious.

Correct me if I misunderstand, but isn't the point of the electoral college to have a body of well-educated experts that vote on the man to lead the US?  By prohibiting them from voting their conscience, aren't we making the electors themselves redundant?

[brucejoel99]

Unanimous decision. States are allowed to compel and replace electors that attempt to cast a ballot for not who they were mandated to vote for.

With a ruling in Chiafolo & then a per curium reversal in Baca.

Thomas agrees with the result, but (predictably) disagrees with the idea that the states' power derives from Article II of the Constitution:

In my view, the Constitution is silent on States' authority to bind electors in voting. I would resolve this case by simply recognizing that "[a]ll powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State."

[brucejoel99]

The only certain thing is that Thomas will write an idiosyncratic dissent and/or concurrence that deals with issues that none of the other justices will address or think relevant.

I sure hope somebody picks up that phone, because you f**king called it.