The case comes as the election season is heating up, putting the Electoral College once again front and center in an increasingly polarized and volatile political atmosphere.
In 2016, 10 of the 538 presidential electors became corrupt, trying to vote for someone other than their promised candidate. In all, 32 states and the District of Columbia have laws designed to discourage unfaithful voters. But until 2016, no state had punished or eliminated a voter for their vote.
The vote count was 9-0.
“Today we consider whether a state can also penalize an elector for breaking his promise and voting for someone other than the presidential candidate who won the popular vote of his state. We maintain that a state can do it,” wrote judge Elena Kagan.
“Both the text of the Constitution and the history of the Nation support allowing a State to enforce an elector’s promise to support his party’s candidate, and the election of state voters, for President,” he added.
The ruling “was not surprising,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“Given the possible implications of a turnout that voters could vote for by anyone they choose, it is not surprising that judges argued that states can prevent them from doing so,” Vladeck said.
“The only surprise is the unanimous vote in cases where at least some hope to divide the Court,” added Vladeck. “Here, at least, concern about the consequences of a contrary ruling seems to have brought the judges together.”
Three presidential electors in Washington state, for example, voted for Colin Powell in 2016 in place of Hillary Clinton and one voted for Keystone XL Faith Spotted Eagle anti-pipeline protester. The state Supreme Court upheld a $ 1,000 fine.
In Colorado, the legal outcome was different when Micheal Baca sought to vote for John Kasich instead of Clinton.
Baca’s vote was rejected and was removed and replaced by a substitute who voted for Clinton. Baca was referred for possible prosecution for perjury, although no charges were filed. He filed a lawsuit and ultimately won when the United States Tenth Circuit Court of Appeals held that while the state has the power to appoint voters, that does not extend to the power to remove them.
In a line of hypothetical questions, Judge Clarence Thomas used Baggins as a case study.
“The voter who had promised to vote for the winning candidate could suddenly say, ‘You know, I’m going to vote for Frodo Baggins. I really like Frodo Baggins.'” And you say, under your system, you can’t do anything about it, “Thomas asked Baca’s attorney, Jason Harrow.
“Your honor, I think there is something to be done, because that would be a vote for a person who is not a person. No matter how big a fan of many people Frodo Baggins is,” said Harrow.
In his opinion, Kagan went through the history of the Electoral College, referring to the presidential elections of 1796 in which John Adams was first among the candidates and Thomas Jefferson second.
Kagan managed to put together a founding age dilemma with a popular political comedy that aired on HBO. (HBO is owned by CNN’s parent company WarnerMedia.)
“That meant that the leaders of the two warring political parties of the era, the Federalists and Republicans, became President and Vice President respectively. (One might think of this as the fodder of the new Veep season),” he wrote. .
And Kagan, one of the court’s liveliest writers, also referenced Lin-Manuel Miranda’s Broadway musical “Hamilton”.
“Alexander Hamilton secured his place on the Broadway stage, but possibly also in the cemetery, pressuring federalists in the House to give the elections to Jefferson, whom he detested but considered a less existential threat to the republic,” he wrote. Kagan.
Thomas agreed with Kagan, writing that “nothing in the Constitution prevents states from requiring presidential electors to vote for the candidate chosen by the people.”
There is one elector for each member of the House of Representatives, the Senate plus an additional three for people living in the District of Columbia. 270 votes are needed to obtain the majority of the Electoral College. If there is a tie or nobody reaches the majority, then the election goes to the House of Representatives.
“This has become a big problem because there is a great risk that for the third time in this century, the winner of the popular vote and the winner of the electoral vote will be different people,” said Reed W. Hundt, who heads a foundation called Making Every Vote Counting.
For Lawrence Lessig, the Harvard law professor behind the challenges, it was clear that while the state does have the power to name a list of presidential voters who are members of the same party as the ticket that wins the popular vote, those voters, a Once appointed, they can cast their votes as they like.
He argued that if the court allowed states to intervene to penalize voters, it could have unexpected consequences. For example, a state might feel free to take more drastic measures, including passing laws to prohibit a voter from voting for a candidate who has not released a copy of their tax returns.
Lessig, who is also founder of the advocacy group Equal Citizens, said in a statement Monday, regardless of the outcome of the case, it was critical to resolve the issue before “creating a constitutional crisis.”
“Obviously, we do not believe that the Tribunal has interpreted the Constitution correctly. But we are glad that we have achieved our main objective: this uncertainty has been removed. That is progress,” he wrote.
Washington State Attorney General Robert Ferguson told judges that since the Electoral College was created, there have only been 165 unfaithful voters representing less than 1% of the Electoral College votes cast for president. Of these, 71 changed their vote in 1872 and 1912 because the candidate they promised their vote for died.
“The scattered examples that remain have largely been symbolic gestures with no chance of affecting the results,” Ferguson said, adding that “over the past century, no voter for a winning presidential candidate has changed votes to a losing candidate.”
This story has been updated to include additional background information and feedback.
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