MARY REICHARD, HOST: It’s Memorial Day Monday, the 25th of May, 2020. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Hey, welcome back. You’ve had your nose in law books and working on your Legal Docket podcast we’re planning for July to run through the summer.
But you’ve been missed, and I get lots of email saying so.
Well, the Supreme Court is still chipping away at its docket. It has 57 cases this term and we have a few more teleconference arguments to analyze for you.
Today, two disputes over the Electoral College. Not over its existence, but what to do about Electoral College members who don’t do what they’re supposed to do. Namely, they refuse to vote for the candidate who won their state.
REICHARD: These are so-called “faithless electors.”
By way of background: the Electoral College has its authority in the U-S Constitution. Article II directs each state legislature to decide how to choose its own electors. That and the 12th Amendment mentions electors, but beyond that, the constitution gives no other guidance.
Here’s how it works. Each state has as many electoral votes as it has representation in Congress. For example, in my state of Missouri, we have 10 electors. That’s two for each senator, and eight more for each of Missouri’s house delegation. And that number is based upon the population count every ten years, the Census.
In total, the country has 538 possible electoral votes, and to win the presidency, a candidate must receive a total of 270 of them. A national popular vote doesn’t win American presidential elections; 270 electoral votes wins, and that helps to ensure a geographically broad base of popular support in such a diverse country.
EICHER: That’s the context. Now the facts.
Back in 2016, each state’s popular vote was winner-take-all: either Hillary Clinton or Donald Trump. Taking all the votes together, especially given her landslide wins in heavily populated California and New York, Clinton supporters trumpeted that their candidate won the popular vote, if not the electoral vote.
That angered one elector from Colorado. So he instigated a plan: convince several electors pledged to vote for Trump to vote for someone else. That could create an electoral deadlock, bring Trump’s electoral number below 270, and toss the election into the House of Representatives to choose a president. The Constitution provides for that alternative.
REICHARD: But of the 10 electors who wound up casting ballots for candidates other than the popular vote winner in their states, it cost Trump only two votes. Trump’s margin was 36, so it didn’t ever seriously threaten the outcome.
But it did result in the electors being either removed from their posts or fined $1,000.
And that’s what the dispute is over: whether under threat of punishment, state laws that require electors to vote as state law directs amounts to a violation of the First Amendment rights of electors.
I will use audio from both cases interchangeably as the legal questions are similar, although each arose from opposite rulings in courts below. One’s out of Colorado where the 10th Circuit sided with the rogue electors; the other from Washington state where its supreme court upheld the fines against them.
Justice Ruth Bader Ginsburg wondered what any outcome really means in this question to Colorado’s attorney general, Philip Weiser. He argued in favor of forcing electors to vote for the candidate who won the popular vote.
GINSBURG: How would a ruling against you actually alter our democratic processes? Most states already require elector pledges. And faithless voting throughout the years has always been rare. So how much difference does it make?
WEISER: Your Honor, the chaos that could result is one that could occasion a constitutional crisis…
Weiser going on to say that not forcing electors to vote for his or her state’s popular vote winner is a “dangerous time bomb” and a “treacherous experiment.”
But lawyers for the electors who voted their own way argued otherwise. Listen to lawyer for the faithless electors from Washington, Lawrence Lessig:
LESSIG: There is no tradition in America, maybe in the Soviet Union as Justice Kagan suggests, but not in America, of a government exercising control over a vote, over an elector. That power doesn’t exist. Therefore, it’s not a question of whether it was taken away by the federal government. It wasn’t there before.
Yet several justices could imagine the problem of corrupted electors. Here’s Justice Samuel Alito who asked the same question twice. Here, the answer is from Jason Harrow, lawyer in support of the rogue electors:
ALITO: Suppose an elector is bribed between the time of popular vote and the time when the electors vote. Can the state remove that elector?
HARROW: No, we don’t think so, Your Honor. And that’s consistent with the treatment of every other elected official. Senators and representatives cannot be removed for a supposition of bribery, a mere whisper of it. They have to be removed for proof of it. And the same thing would be true here.
Justice Clarence Thomas imagined a scenario with a certain hobbit from middle earth. Here again with Harrow, lawyer in support of the rogue electors.
THOMAS: You know you mentioned with respect to the state that after someone dies, that their system is so rigid that you can’t make changes because of the death of the candidate. But I think that on your side … you have a similar problem because the elector 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’re saying, under your system, you can’t do anything about that.
HARROW: Your Honor, I think there is something to be done because that would be the vote for a non-person, you know, no matter how big a fan many people are of Frodo Baggins.
The other side favors enforcing state laws that require electors to vote for the popular vote winner. Here’s Washington Attorney General Noah Purcell:
PURCELL: More Americans participate in this election than in any other democratic process in our system of government. But, under Petitioners’ theory, this entire process is irrelevant and always has been, because all that matters is who the electors prefer. On their view, the electors can choose whoever they want to be president, regardless of any voluntary commitments they made to secure their position, regardless of how their state voted, and regardless of whether they are being bribed or blackmailed for their vote. That is not the law….states are allowed to require presidential electors to vote for the candidate chosen by the state’s voters and to enforce that requirement.
A strong thread of federalism rose up, from an unexpected place. Here, liberal-leaning Justice Elena Kagan, who didn’t think the Constitution offers much guidance in this matter.
KAGAN: 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?
HARROW: Your honor I would push against because I don’t think that there’s silence.
Harrow underscored that the Founders meant for the Electoral College to be independent. No less than Alexander Hamilton said so, as an intermediary between the people and the presidency.
But Justice Alito had some qualms:
ALITO: We have to interpret the Constitution to mean what it means, regardless of the consequences, but I am interested in at least understanding what the consequences of your position would be…There’s the fact that in most states the electors are not even listed on the ballots and therefore the voters have no way of trying to ensure that the electors who were chosen are electors who really will honor the wishes of the voters. So do you really deny that this is where your argument would lead?
HARROW: We do deny it, Justice Alito…
But the states argued Hamilton’s view on this wasn’t shared by everyone of his fellow Founders. The Constitution isn’t all that clear about it, and the political parties we have now weren’t anticipated by them.
Justice Brett Kavanaugh came back several times to the question of what is the purpose of the Electoral College in the first place?
Colorado’s attorney general Weiser answered that the Constitution was designed for states to make their own choice: electors to vote as proxy voters on behalf of the public, or as free agents.
Justice Kavanaugh referenced the 10th Amendment’s statement that any power not specifically given to the federal government by the Constitution belongs to the States.
KAVANAUGH: The question here is not whether the Constitution requires the states to bind electors, of course. It’s whether the Constitution permits states to bind electors. And on that question, why doesn’t the 10th Amendment as the states’ authority, pre-existing authority, as Justice Thomas was suggesting, come in?
Lawyer Lessig answered the state didn’t raise the 10th Amendment and even if it did, tradition doesn’t align with forcing electors to vote according to state law.
And back and forth it went.
The larger issue here of course is the movement by some Democrats to get rid of the Electoral College altogether and elect the president by nationwide popular vote.
This case isn’t about that, but it does foreshadow battles to come.
And that’s this week’s Legal Docket.