What happens in the faithless elector cases?

[I’m not Stu]

Pick outcome, vote, and majority opinion writer.

[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.

[True Federalist (진정한 연방 주의자)]

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’m not Stu]

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.

[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.

[I’m not Stu]

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.

[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?

[I’m not Stu]

Although if there isn’t a tie in Baca, and it turns out the same way in both cases; the judgment wouldn’t need to be vacated.

[politicallefty]

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

My first thoughts before delving too much into it was that the states should probably prevail. I listened to a good portion of the oral arguments and I definitely maintain that position.

I'm not sure what the vote will be or who will write (the latter typically depends on monthly sittings, but who knows what that means right now).

I think it's worth considering Ray v. Blair from 1952, which upheld the right of states to require a pledge from electors to vote a certain way. That gives this Court some basis on which to build upon and further establish what I would think to be is a near plenary power of the states. I think the Court should rule for the states, but with a minor limitation. Any limitations on what the electors can do can only be limited at the time of appointment. In our current paradigm, the time of appointment would be Election Day. In other words, the states could not change the rules if they do not like the result of the election. The rules must be established before appointment. So, in the case of Chiafalo v. Washington, Washington should win.

The case in Baca is a little less obvious considering it involves actual replacement of any rogue electors versus a penalty for violating a pledge after the fact. The oral arguments mentioned potential removal for bribery and whatnot. As I said, this one isn't as obvious, but I think so long as the procedures are established before the fact, the state should have the authority to replace an elector that does not follow said established procedures (and so long as the procedures followed were set prior to appointment/election).

[beaver2.0]

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?

[I’m not Stu]

Faithless electors will lose both cases.

[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?

[Del Tachi]

I want the maximum chaos option, so hopefully the Court decides that electors have a constitutional right to be faithless.  I did like Kavanaugh's question in oral argument that the second half of the Appointing Clause "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." does seem to imply that electors were meant to be protected from possible conflicts of interest, which would be a moot point if they were just meant to vote however state legislatures directed them.

[StateBoiler]

What I said on the matter at Ballot Access News:

Thought the article at SCOTUSblog was pretty good. https://www.scotusblog.com/2020/05/argument-analysis-in-a-close-case-concerns-about-chaos-from-faithless-electors/

My two points of concern:

1. This is a bit like the convention/binded delegates argument. Why can’t the parties do a better job picking their electors if this is a concern? Just make the State Party Central Committee the electors. It confounds me how tightly controlled political parties are about certain aspects to allow for zero dissent intra-party (like at Conventions), and then on the other hand they do little screening for who they pick on things like presidential elector.
 2. If it’s explicitly written “thou shall vote for the candidates that won a plurality”, it means electors have zero discretion. Which is fine…except when it isn’t. Twice in this country’s history we’ve had candidates die between the election and the Electoral College. 1872 with Horace Greeley and 1912 with Taft’s Vice President. Now in both cases, they lost, so it didn’t affect anything. But the precedent was established with Greeley that votes cast for dead candidates were disqualified.

I think to add on to that, if electors shall have zero discretion, why even have physical beings unless it's only in the case of #2 above? Just say such and such is credited with 3 from winning state X. And even in #2, it's not going to be the electors gathering and deciding, it'd be a political party's national committee deciding (because voters will have no say in this) and then telling the electors what to do. Should they be allowed discretion then to give deference to a body that does not exist at all in the Constitution and where like the Electoral College most of the decision makers are nameless to the U.S. public?

Lawrence Lessig argued for one of the electors and shared a more nuanced argument that he said the format didn't allow for in court. https://medium.com/@lessig/morning-after-thoughts-65b3a69d59d5

In short, 63 of all 90 faithless electors in history were from a circumstance no one could argue against - death of a candidate. Of the remainder, all but 1 never turned and voted for the other party, and that one case was one of the earliest elections where the person thought his state's electoral vote should more match the percentage each candidate got. Of all the huge numbers of electors throughout history, that's the only 1 that was not an empty political statement with no repercussions.

Really the case for chaos if there was going to be one was the 2000 election where 2 Bush voters could've not voted for him. And he went 271 out of 271.

[StateBoiler]

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.

[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.

[StateBoiler]

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.

His reasoning is sound. And Gorsuch agreed with him.

[Stranger in a strange land]

This is a freedom decision. I support abolishing the electoral college and moving to a popular vote, but if we're going to have the EC, electors should at least have to respect the will of the people in their states.