WASHINGTON – The 538 people who cast the royal ballots for president in December as part of the Electoral College are not free agents and must vote as directed by their state’s laws, the U.S. Supreme Court ruled Monday.
The unanimous decision in the “infidel voter” case was a defeat for advocates of changing the Electoral College, who hoped that a victory would force a change in the method of electing presidents toward a popular vote at the national level. But it was a victory for state election officials who feared that empowering corrupt voters would cause chaos.
Writing for the court, Judge Elena Kagan said the Constitution gives states broad authority over the election of presidential voters. That includes the power to set conditions on a voter’s appointment, “that is, what the voter must do to make the appointment take effect.”
Furthermore, he wrote, “nothing in the Constitution expressly prohibits states from taking away voting discretion from presiding electors.” The ruling is aligned with “the confidence of a nation that here, We the people rule,” Kagan said.
The November general election is not really a direct vote for the presidential candidates. Instead, voters choose a list of electors designated in their states by political parties. Those voters meet in December to cast their votes, which are counted during a joint session of Congress in January.
The court’s opinion said that presidential voters must act as their states require, which in most parts of the nation means voting for the candidate who won the popular vote in their states. In Maine and Nebraska, presidential voters are guided by votes from congressional districts.
If the court ruled otherwise, then individual voters who decided to vote as they wished in a closed race could have the power to decide who wins.
Four “infidel voters” from the state of Colorado and Washington who failed to deliver the popular vote in the 2016 election sued, alleging that states can only regulate how voters are chosen, not what comes next.
Harvard law professor Larry Lessig, who advocates for Electoral College reform, told the court that nothing in the Constitution gives states any authority to restrict how a voter can vote, because they act in a federal role when they meet as an Electoral College.
Instead of voting for Hillary Clinton, who won the popular vote in Colorado, Micheal Baca cast her vote for John Kasich, the former Republican governor of Ohio. And in Washington state, where Clinton also won the popular vote, three of the state’s 12 electors voted for Colin Powell, the former secretary of state.
Lessig said Monday that he was told the time of the court’s decision, but not the result.
“When we launched these cases, we did so because, regardless of the outcome, it was critical to resolve this issue before it created a constitutional crisis. We have succeeded,” he said. “Obviously, we do not believe that the court has interpreted the Constitution correctly. But we are glad that we have achieved our main objective: this uncertainty has been removed. That is progress.”
The Supreme Court ruled in 1952 that states do not violate the Constitution by requiring voters to commit to complying with the results of the popular vote. But judges have never before said whether it is constitutional to enforce those promises.
Lessig said he hoped the controversy would encourage more states to adopt a system in which they would assign all their constituents to the candidate who wins the nationwide popular vote for president.
More than a dozen states have signed an interstate agreement to make the change. It will take effect once the participating states represent at least 270 electoral votes, the minimum necessary to be elected president.
