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Supreme Court Unanimously Holds States Can Punish Rogue Electors

Electors pledging to vote for their state's chosen candidate.
By Kellie Pantekoek, Esq. on July 06, 2020 12:19 PM

Presidential elections in the U.S. are not decided by popular vote. Instead, electors from each state cast ballots for their state’s chosen candidate in the Electoral College. Each state is assigned a number of electors based on its population. There is a total of 538 electors, and a presidential candidate needs at least 270 electoral votes to win the election.

Most states apply a winner-takes-all approach, with all of a state’s electoral votes going to the candidate who wins the state’s popular vote. But what happens if electors decide to go rogue and not vote for the candidate that their state chose?

The U.S. Supreme Court issued a decision on Monday, July 6, holding that states can compel members of the Electoral College to vote for the presidential candidate chosen by the state’s popular vote. The Supreme Court held in Chiafalo v. Washington and Colorado v. Baca that states can remove or fine “faithless electors” who do not vote as they had pledged.

The Constitution and federal law are silent as to whether electors can be forced to vote for the candidate that they have pledged. However, about half of states have laws barring faithless electors, though many states have no actual recourse for such violations.

Now with the new Supreme Court decision, we know faithless electors can be replaced or fined, which reduces the threat of chaos from the upcoming election.

‘Faithless Electors’ Gained Attention During 2016 Election

Prior to the November 2016 general election, there wasn’t much talk about faithless electors. There simply hadn’t been a need. However, when the electors cast their ballots the following month, a record seven electors cast their ballots for a candidate other than the winner of popular vote in their respective states.

Interestingly, five of the seven were unfaithful to Hillary Clinton while two were unfaithful to Donald Trump. The state of Washington fined their three faithless electors $1,000 each, while Colorado removed and replaced the rogue electors in their state – and the Supreme Court held that these actions were legal.

Before the 2016 election, there had never been more than one faithless elector in a presidential election since 1948.

Although faithless electors have never decided an election, it would certainly be possible in close elections, such as in 2000 when there was a near tie and Al Gore lost to George W. Bush by just five electoral votes.

Criticism of the Electoral College

The Electoral College has been criticized for a number of reasons, including that the winner of the Electoral College vote has not aligned with the winner of the popular vote in two recent elections: Al Gore beat George W. Bush in popular vote in 2000, and Hilary Clinton beat Donald Trump in popular vote in 2016.

The Electoral College is also criticized for placing the results of the presidential election predominantly in swing states. As a result, campaigns focus heavily on these tipping-point states while the rest of the country is largely ignored as presumed to be “red” or “blue.”

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