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Supreme Court may snub ‘faithless’ electors

“We have to interpret the Constitution to mean what it means, regardless of the consequences, but … we are told by experts in elections that the consequences would be potentially chaotic,” Justice Samuel Alito said.

Alito added that election specialists had warned the court that “after an election where the apparent outcome based on the popular vote is a small margin of victory for one candidate, there would be concerted campaigns to change that result by influencing a few electors and that could be achieved by influencing just a single elector.”

Justice Brett Kavanaugh, an appointee of President Donald Trump, didn’t explicitly endorse the “results-based judging” that liberals are often mocked for. But Kavanaugh seemed headed in that direction when he invoked what he called “the avoid-chaos principle of judging, which suggests that if it’s a close call or a tiebreaker, that we shouldn’t facilitate or create chaos.”

Liberal justices also seemed inclined to leave the states free to implement laws seeking to control electors. Justice Elena Kagan suggested there was nothing in the Constitution that says states can’t do that, so the justices shouldn’t step in.

“What would you say if I said that if I think that there’s silence, the best thing to do is leave it to the states and not impose any constitutional requirement on them?” she said.

The attorneys for two states seeking to control the votes of presidential electors, Colorado and Washington, minced no words about the disaster the justices would be courting by ruling for the electors.

Colorado Attorney General Philip Weiser warned the justices against indulging a “treacherous experiment” that could upend the electoral process.

“We urge this court to reject this dangerous time bomb and avoid a potential constitutional crisis,” he said

However, lawyers asserting that the electors have authority to stray from the popular-vote winner in their states say such defections are essentially baked into the Constitution’s plan for the Electoral College.

They also said that electors had deviated to vote for alternate candidates on many occasions, including after the death of a candidate, and that no national catastrophe had ensued.

“Here, I think, past is prologue,” attorney Jason Harrow said, noting efforts to sway electors in the 1800s, 2000 and 2016. “That’s in the Constitution, but … if we’re going back to the chaos point, the center has always held — the center has always held.”

Harrow also noted that despite the history and the perceived dangers many of the justices latched on to, 18 states have no law seeking to force electors to vote for their state’s popular-vote winner.

A top lawyer for Washington state, which has a law imposing a fine on faithless electors, told the justices that electors have not traditionally been independent actors like legislators.

“If the other side were right about how electors were supposed to operate, what you would have seen historically is electors trying to convince legislatures and the public to choose them because of their great wisdom and knowledge,” said Washington’s solicitor general, Noah Purcell. “And that is never, ever how American presidential elections have operated. … To adopt their view would be to radically change … how American presidential elections have always operated.”

Both sides in the cases insisted that a ruling for the other would have bizarre and unintended consequences.

Purcell and Weiser said putting electors beyond the coercive power of state law could effectively immunize the bribery of electors.

Harrow and Lawrence Lessig, a Harvard law professor, countered that allowing states to regulate the actions of electors could be a back-door way for states to add qualifications for presidential candidates, perhaps by instructing electors to vote for only those who had released tax returns.

Weiser conceded that a demand for tax returns probably wouldn’t meet constitutional muster, but he surprised some observers by insisting that Colorado could pass a law seeking to direct its electoral votes only to a candidate who had campaigned in the state.

“The requirement to visit a state I don’t believe clearly violates any constitutional provision,” the Colorado attorney general said.

Though states have long governed the rules around the selection and votes of presidential electors, the process is largely driven by political parties. Each party chooses a slate of electors who would cast the official votes for the state depending on the winner of the state’s popular vote. In other words, Democratic electors cast ballots in states won by Democratic candidates, and Republican electors cast ballots in states won by Republicans.

Typically, this has led to a drama-free process, but 2016 changed the equation. Both the cases that went before the Supreme Court on Wednesday stem from that hard-fought presidential race.

Micheal Baca and Polly Baca — no relation — were both presidential electors from Colorado who banded together with others across the country as part of a strategy to tip the election from Donald Trump to a more mainstream Republican. Though both were Democratic electors, the goal of their group — which called itself the Hamilton Electors — was to persuade Democratic electors across the country to cast their votes for an agreed-upon Republican, like Mitt Romney or John Kasich, and hope to inspire about three-dozen Republican electors to join them and swing the vote away from Trump.

But when Micheal Baca tried to cast his vote for a Republican, defying Colorado’s popular vote for Hillary Clinton, the secretary of state refused to count it and moved to replace him as an elector. Ultimately, Baca’s attempted vote wasn’t counted, and he sued.

In Washington state, four electors on the slate supporting Clinton were fined $1,000 apiece for casting their ballots for others. Three backed Colin Powell in what they said was a protest against Trump’s abrasive and confrontational campaign style. A fourth, a Native American activist, diverted to vote for another American Indian leader, Faith Spotted Eagle.

The various efforts were ultimately inconsequential, but the 2016 Electoral College vote featured more “faithless” votes than any in history, with seven electors — representing nearly 5 million voters — defying the popular vote in their states. Several other attempted faithless votes were blocked. Just two Republican electors, both in Texas, broke from Trump.

In a way, though, the frenetic lobbying effort to swing the election foreshadowed the constant crisis atmosphere that has surrounded the Trump election and presidency, shining a light on creaky constitutional mechanisms that had long been untested and unchallenged. Electors, historically anonymous figures elected at little-noticed political party functions, found themselves bombarded by pressure campaigns and threats. And as evidence of Russia’s attack on the 2016 election began to trickle out, Clinton backers urged that electors be briefed on classified intelligence in order to factor it into their votes.

The arguments on Wednesday, conducted via telephone because of the coronavirus pandemic, were the last scheduled ones of the court’s current term. Decisions are expected by the end of June.

About a dozen cases that were set to be heard in March or April, but did not make the cut for this month’s unusual court session, are expected to be argued in the fall.

Source: politico.com
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