By Daniel H. Stewart
The day after Chief Justice John Roberts gaveled-in President Trump’s impeachment trial, the Supreme Court agreed to hear a case that could fundamentally (and immediately) change the way we elect our presidents.
On Jan. 17, the Supreme Court paved the way to hear Colorado Department of State v. Baca and Chiafalo v. Washington, two cases posing a simple yet foundational question: Can states control the way their presidential electors vote? Are these electors mere automatons, or do they have a constitutional right to vote their conscience, regardless of individual promise or state law?
Unlike the other controversial usual suspects regularly before the Court, this is the first time it will directly address the limits—if any—on elector discretion. For over 230 years, presidential electors have had one job, and they have managed to do it well through landslide victories, razor-thin margins, secession and war.
In 2016, though, a record number of electors broke ranks, casting votes for Colin Powel, Ron Paul, John Kasich, Bernie Sanders and Faith Spotted Eagle. Only the now-challenged state laws stopped more revolt.
Angst over the both the results of the election and the Electoral College itself drove these defections. For the first time ever, there was a well-funded campaign to convince the electors of their independence. Hollywood celebrities, media luminaries, and constitutional law scholars pleaded for so-called “Hamiltonian Electors” to act as “circuit-breakers” for a voting public crazy enough to make an “unqualified demagogue” president.
They summoned more than rhetorical prayers; they offered legal arguments: it was each elector’s constitutional duty to vote his or her conscience, no matter what home-state voters wanted. The campaign did not work, but the legal arguments remained. And here we are.
First, a refresher on the law at issue. Article II, Section 1 of the United States Constitution, as amended in 1804 by the Twelfth Amendment, establishes the Electoral College by which we elect the President and Vice President. As part of the process, each “State shall appoint [its electors], in such Manner as the legislature thereof may direct . . . .”
Nevada, like 32 other states and the District of Columbia, legally binds its electors.
Before serving, each Nevada elector must sign a pledge that “if selected for the position of presidential elector, I agree to serve as such and to vote only for the nominees for President and Vice President of the political party or the independent candidates who received the highest number of votes in the State at the general election.” See NRS Chapter 298.045
If commitment to one’s own word (and party) won’t keep the electors in line, however, the Act has other teeth. The secretary of state will reject any non-conforming ballot and replace the offending elector. Faithless electors have no chance to cheat.
The Supreme Court will soon tell us whether this law and others like it will stand.
On its face, this is no easy case – centuries of history notwithstanding. The court will largely have to interpret textual silence. Does Article II, Section 1 set a ceiling or a floor on what states can do with their “plenary” power to appoint electors? I don’t know how the court will answer that question. The dispute meshes together judicial philosophies and approaches all nine justices hold dear. But I think the state’s defenders have the better case.
Will the decision matter? Faithless electors have never made a difference before. But they have never had the Supreme Court in their corner before either. Judicial intervention or decree may be enough to set future elections on an entirely different trajectory. Some may read any high court approval as encouragement rather than toleration, transforming a constitutional possibility into a constitutional duty.
Wouldn’t electors feel obligated to vote their conscience? With all the useful excuses gone, the electors’ hands are no longer tied, and half the country will likely blame them for enthroning Hitler or Stalin. No, it is not enough to rely on past practices for comfort.
Fortunately, Attorney General Aaron Ford, is standing up for Nevada law. He joined an amicus brief defending Nevada’s right to bind its electors.
Good for General Ford. Some of his fellow Democrats may like the concept of unbound electors voting for the popular-vote winner or against candidates like Trump. Others may simply want to watch the Electoral College immolate on its own hypocrisies. I cannot blame them. But elector free agency will cure no ills.
Swing states like Nevada may give way to swing electors. And Electoral College reforms like the National Popular Vote Interstate Compact will die overnight. If states cannot control their electors, they have little room to test alternatives and even less for bargaining. The entire reform effort would hinge on the near-impossible modern-day task of amending the Constitution itself.
Freeing the electors will also compound the anti-democratic features embedded in the Electoral College. Few people know who these potentially super-powered electors are. Their names appear on no ballots.
It is my job to stay informed about Nevada politics and other than Assembly Majority Leader Teresa Benitez-Thompson, I had no idea who Nevada’s 2016 electors were. Without Google, I would have not even known where to find their names.
If Assemblywomen Benitez-Thompson is the template, they are all likely good, trustworthy people who earned their spot. But how many Nevadans cast an informed vote for their electors? Are we really comfortable granting such independent and unaccountable authority to 538 mostly anonymous individuals?
The timing could not be worse for such tinkering. It will not take much change in 2020 for the presidential race to be even closer than it was in 2016. Indeed, an electoral tie at 269-269 is a real possibility. Every individual electoral vote could matter. We have cause to worry.
Now is not the time to weaken structural safeguards that have worked for so long. And I hope the Supreme Court agrees with Attorney General Ford: it is our constitutional right as Nevadans to bind our electors.
Daniel H. Stewart is a partner with Hutchison & Steffen, where he leads the firm’s Election, Campaign and Political Law practice. He has practiced law in both the public and private sectors, representing elected officials, candidates, campaigns, social welfare organizations, and other political and policy-focused clients.