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Supreme Court Resolves Faithless Elector Dispute, Still Leaves Electoral College Problems On Table

Supreme Court Resolves Faithless Elector Dispute, Still Leaves Electoral College Problems On Table

On November 3, voters across the country will cast their votes for President and Vice President. However, this vote will merely decide which electors will actually vote for President and Vice President when the electoral college meets on December 14, 2020. On Election Night, the media will report which candidates won which states as the vote totals are released, but these electoral votes are not abstract scores - they are people, generally life-long volunteers and leaders for the political party whose nominee won the state. The Election Night results rest on the assumption that these people will vote as expected in December.

One way that assumption has been made more reliable is by laws in 32 states and D.C. requiring electors to vote for their political party’s nominee as expected. After the Supreme Court released its opinions upholding these laws in the two “faithless elector” cases on July 6, we can expect more states to adopt them.

The Court’s unanimous decision allows states to decide how much independence to give electors. Many of the states that have legally required their electors to support their party’s nominee do not currently provide penalties for faithless electors. This will likely change now that the Court has approved a wide range of sanctions.

Historically, there have been very few faithless electors even in the absence of these state laws. Electors are hand-picked by political parties. That may be why there has only ever been one elector who voted for his party nominee’s rival - when Samuel Miles voted for Thomas Jefferson rather than John Adams in 1796. Although a number of electors have cast some sort of deviant vote since then, none actually did so believing that their vote could plausibly change the outcome of the election. It is telling, for instance, that of the 10 deviant votes cast in 2016, only two were Republican electors, and the large number of “faithless electors” in 2016 actually increased Donald Trump’s electoral margin.

The Court’s decision therefore may provide some comfort to those with concerns about how their votes will or will not contribute to the election of the President and Vice President, but it is unlikely to have much practical impact - faithless electors have never impacted the result of the vote before, and they likely will not now.

Although the decision will have little practical impact on presidential elections, it does bring them more in line with modern views of democracy. The Court based its decision, in part, on the monumental shift towards meaningful popular elections that has taken place in this country since its founding. Although electors were originally viewed as independent decisionmakers, states almost immediately began to limit elector autonomy. As early as the mid-19th-century, nearly all states held popular presidential elections where the electors were expected (but not required) to vote in line with the popular vote result. Today more than 60 percent of all electors are required to vote for the people’s choice. In fact, many Americans now believe that they are voting directly for president and vice president when they go to the polls on election day, partly because that is what most ballots indicate. By giving explicit constitutional legitimacy to state laws enforcing the “longstanding tradition” of presidential popular elections, the Supreme Court has brought the electoral college closer in line with voters’ expectations and modern views of democracy. Furthermore, electors’ independent judgment has often been seen as undermining the democratic legitimacy of the presidential vote, and has been a source of uncertainty. The Court resolved both of these problems just in time for the 2020 presidential election. 

Although this decision is a step forward, there still remain other serious problems with the electoral college, like its mechanism for resolving ties (throwing the election to Congress, with House delegations each getting one vote for President, and the Senate choosing the Vice President). Most importantly, the decision does not address the most serious problem with our presidential election system: that the winner-take-all state-by-state electoral college system privileges the votes of a tiny number of swing states over the 80% of voters living in states that are reliably “red” or “blue.” While this decision is a step forward for the legitimacy of our presidential elections, it is not a substitute for making every vote equal with a national popular vote.

 

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