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The U.S. Supreme Court today upheld state laws that remove or punish Electoral College delegates who refuse to cast their votes for presidential candidates they were pledged to support. The decision was a loss for so-called faithless electors who argued that under the Constitution, they have voting discretion. As NPR legal affairs correspondent Nina Totenberg reports, the court's decision today was unanimous.
NINA TOTENBERG, BYLINE: Justice Elena Kagan wrote for the court declaring that there is no ground for rogue Electoral College delegates to cast their votes for anyone other than the popular vote winner in the states. In a decision with references to the Broadway show "Hamilton" and the TV show "Veep," Kagan said Electoral College delegates have, quote, "no ground for reversing" the popular vote. That, she said, accords with the Constitution, as well as with the trust of the nation that here we the people rule. The decision was a relief to election experts and both Democratic and Republican Party officials who have long supported faithless elector laws like those upheld today. Rick Hasen, a law professor at the University of California Irvine, has written extensively about election law.
RICHARD HASEN: If it would have come out the other way, there would have been the ability to go after electors and try to threaten them or cajole them or bribe them to vote in a particular way that would have been really a nightmare scenario.
TOTENBERG: Colorado Attorney General Philip Weiser echoed those sentiments.
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PHILIP WEISER: This was one that I did not want to contemplate what the other consequence would've looked like.
TOTENBERG: And Harvard law professor Lawrence Lessig, who represented the rogue electors before the Supreme Court, was only mildly disappointed at losing.
LAWRENCE LESSIG: We took this case initially because we just thought this needed to be resolved before it created a constitutional crisis.
TOTENBERG: Although most states have laws that bind Electoral College delegates to vote for the popular vote winner, only 15 states actually have enforcement laws to remove or penalize rogue electors. Today's Supreme Court decision, however, is so strong that it would seem to allow states to remove faithless electors even without a law. Duke law professor Guy-Uriel Charles says that, nonetheless, he thinks it would be prudent for states to pass laws.
GUY-URIEL CHARLES: States certainly would be better off by imposing some statutory basis for sanctioning rogue electors. But I don't see anything in this opinion that requires them to do so.
TOTENBERG: Today's case began after the 2016 election when a handful of Electoral College delegates pledged to Hillary Clinton in Colorado and Washington state voted for other individuals like Colin Powell. Their purpose was to lure Republicans into defecting from Donald Trump and thus throw the election into the House of Representatives. The Colorado delegates were removed and replaced on the spot per the state law. The Washington state delegates were each find a thousand dollars. And in 2019, the law was amended to require removal. Today, the Supreme Court put its stamp of approval on either approach at minimum.
Justice Kagan's opinion for the court noted that the Electoral College system of picking presidents failed to anticipate the growth of political parties. And by 1796, the first contested election after George Washington's retirement, the system exploded in disarray with two consecutive Electoral College fiascoes. That led to passage of the 12th Amendment in 1804, facilitating the Electoral College as a mechanism not for deliberation but for party line voting. Nothing in the Constitution, said Kagan, prevents the states from taking away presidential electors' voting discretion. For centuries, she observed, almost all electors have considered themselves bound to vote for the winner of the state popular vote. Concluded Kagan, the argument for Electoral College discretion has neither text nor history on its side.
Nina Totenberg, NPR News, Washington.
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