States can pass laws that punish so-called “faithless electors” who refuse to cast an official ballot for the winner of that state’s popular vote, the Supreme Court said Monday, in a unanimous 9-0 decision authored by Justice Elena Kagan.
Members of the Electoral College are selected on a state-by-state basis and, according to the United States Constitution, are bound to cast their official state ballots for whichever presidential candidate wins their state’s popular vote.
“In 2016,” CNN reports, “10 of the 538 presidential electors went rogue, attempting to vote for someone other than their pledged candidate. In all, 32 states and the District of Columbia have laws that are meant to discourage faithless electors. But until 2016, no state had ever actually punished or removed an elector because of his or her vote.”
The anti-Trump “resistance” was particularly concerned with this decision, as they had hoped to pressure members of the Electoral College to declare themselves “faithless” and cast ballots for President Donald Trump’s opponent in November if Trump were to lose the national popular vote.
In 2016, as CNN noted, several electors tried to defect from their state delegations over similar concerns — that Trump had lost the national popular vote to the then-Democratic candidate, Hillary Clinton. At least three electors went completely rogue in 2016, casting ballots for Colin Powell, John Kasich, and Native American rights activist Faith Spotted Eagle.
Those rogue electors eventually brought the suit that landed at the Supreme Court, after receiving fines.
On Monday, though, “resistance” hopes were dashed by left-leaning members of the court.
“Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so,” Kagan wrote for the majority. “The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for President.”
“The Constitution is barebones about electors,” she continued. “Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives.”
While most Constitutional scholars agreed that the outcome of the case was “not surprising,” at least according to CNN, many were shocked that the court was unanimous in its decision to uphold laws punishing “faithless electors.”
“The only surprise is the unanimous vote in cases at least some expected to divide the Court,” one expert told the network. “Here, at least, concern over the consequences of a contrary ruling appears to have united the Justices.”
Kagan was careful not to suggest that states must bind electors to the outcome of a state’s popular vote, Fox News notes. Instead, Kagan said, states may outline for themselves the role of electors.
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