SCOTUS News, Part I: States Can Punish Faithless Electors
The Supreme Court's docket for the current term included two cases related to faithless electors from 2016. One of those, Chiafalo v. Washington, involved three Washington state electors who voted for candidates other than Hillary Clinton, and who were each fined $1,000. The other, Colorado Department of State v. Baca, involved a Colorado man who voted for John Kasich (instead of Clinton), and who was replaced with an alternate elector by Colorado Secretary of State Wayne Williams. On Monday, the Court ruled 9-0 in favor of Washington, and 8-0 in favor of Colorado (Sonia Sotomayor recused herself). In other words, SCOTUS declared unanimously that states are free to punish faithless electors as they see fit.
This result was pretty much a loss for everyone, regardless of their feelings about the Electoral College. The plaintiffs who brought the case, under the guidance of Harvard Law's Lawrence Lessig, were trying to render the whole system absurd in hopes that it would motivate Americans to support the elimination of the EC. Obviously, that did not happen. And for those who thought they might at least exploit a loophole or two, say by passing a law that says that electors can only vote for candidates who release their tax returns, the Court specifically put the kibosh on that. Justice Elena Kagan, writing for the majority, declared that states cannot impose "new requirements on presidential candidates."
Meanwhile, for folks who think the Electoral College is fine and dandy, Monday's ruling didn't actually stabilize things all that much. It is true that states now have the Court's blessing when it comes to compelling faithfulness among electors. However, it is also true that only 32 states (plus the District of Columbia) have such laws. In 16 of those (plus DC), there's no actual penalty for going faithless. In another three, the only penalty is a fine. So, there are just 13 states right now—WA, NV, MT, UT, CO, AZ, NE, OK, MN, MI, IL, NC, and ME—where an elector who casts the "wrong" vote can be overruled. That's 124 EVs, leaving 414 for shenanigans. One day, a political party may decide that in an era where presidential campaigns cost north of $1 billion, paying $5 million per EV for, say, 100 EVs is a relative bargain.
The decision doesn't unambiguously say that a state can nullify an electoral vote that doesn't align with the state especially if the elector doesn't announce his or her vote in advance, although it didn't object to the Colorado secretary of state refusing to certify a faithless elector's vote and replacing him with an alternate elector. However, the decision does clearly say that a state can make faithlessness a crime and punish an elector after the fact. But if the fine is $1,000 that is not going to deter a lot of electors. Of course, if a state were to raise the ante a bit by making the penalty death by firing squad or 50 years in state prison, that might make most electors think carefully before going rogue. And as mentioned above, most states don't have laws that punish or replace faithless electors, so their new power to pass such laws won't matter if they don't want to. (Z)
