The Supreme Court is expected to issue opinions this month on two faithless elector cases that could change how America votes for presidents. The Court heard arguments last month from several faithless electors and the states requiring them to represent their states’ voters. Both the electors and the states cited FairVote’s research on faithless electors and the state laws that restrain them.
The first case, Chiafalo v. Washington, arose in 2016 when three Washington electors who had pledged to vote for Hillary Clinton violated state law by voting instead for Colin Powell. The electors failed to sway Republican electors to support their compromise candidate. Washington counted the votes, but fined each elector $1,000. The second case, Colorado Department of State v. Baca, stems from a similar plan by Colorado elector Michael Baca, who hoped to avoid the election of now-President Trump by convincing electors to support John Kasich. Colorado cancelled Baca’s vote and replaced him. Both cases revolve around an unsettled question at the heart of our democracy: Can a state require electors to vote for the winner of the state’s popular election?
The Court’s answer could have important consequences for future presidential elections. Currently, 32 states have laws requiring electors to vote for the winner of their state presidential elections. These laws, governing more than 60 percent of all electors, will be nullified if the Supreme Court decides in favor of the electors.
Without state laws binding electors to the results of state popular elections, electors would have a constitutional right to vote for nearly anyone. An elector could support the candidate who lost her state’s popular vote, or work with other electors to try to elect someone not on the ballot. The states even argue that they could not prevent electors from accepting bribes in exchange for their votes, though this was disputed during oral argument. Supporters of faithless electors promote this independence as a safeguard against unfit, dangerous presidential candidates. Conversely, critics argue allowing electors to ignore popular elections is antidemocratic and chaotic. Although electors rarely vote faithlessly and have only altered the outcome of one electoral college vote -- sending the vice-presidential election of 1836 to the Senate -- even a few electors could theoretically swing a close, hyper-partisan election.
Assuming that the Supreme Court does not decide Baca and Chiafalo on threshold procedural issues, the Court will resolve an important tension between the electoral college’s antidemocratic origins and our modern democratic aspirations, potentially transforming the way we elect our most powerful national official. However, the most important work is still ahead for Americans who believe in democratic presidential elections. Regardless of the Court’s decision, reformers should still strive to standardize our state elector laws, and, ultimately, replace the winner-take-all electoral college rule with a national popular vote.