Supreme Court Says Presidential Electors Can’t Vote How They Wish

( Those wanting to see the United States abandon the Electoral College in favor of more of a popular vote system for president were dealt a blow on Monday.

The Supreme Court delivered a unanimous decision that said the people who cast the actual votes for president as part of the Electoral College are now free agents. They must vote based on what the laws of their state say.

Those who were pushing for a change in the voting system were hoping the Supreme Court would rule in their favor in this “faithless elector” case. But that was not the outcome.

The Constitution gives states “far-reaching authority” over how they choose their presidential electors, Justice Elena Kagan wrote. They can also include the conditions on these electors’ appointments, “that is to say, what the elector must do for the appointment to take effect.” She continued:

“Nothing in the Constitution expressly prohibits states from taking away president electors’ voting discretion.

Because of the Electoral College, voters aren’t casting a direct vote for candidates. Instead, they are choosing a slate of electors who are appointed by political parties in their states. The electors meet in December, where they cast their ballots, which are then eventually counted during a January joint Congressional session.

Because of the Supreme Court’s ruling on Monday, these electors are not free to make whatever choice they want to make. Instead, they must abide by whatever their states tell them they have to do. In most states, this means the electors must cast their vote in line with however the popular vote fell in their state.

Presidential electors in both Nebraska and Maine, meanwhile, make their determinations by how votes in congressional districts went.

If the Supreme Court didn’t rule this way, then the electors could just choose to vote however they wanted to, regardless of what their states said or how residents in their state voted. This would give them immense power in presidential elections.

The case came before the Supreme Court because four “faithless electors” from the states of Washington and Colorado sued. They didn’t conform with the popular vote in the presidential election of 2016, and they claimed states can only regulate how electors are chosen, not how they cast their final vote.

Three of Washington’s 12 electors voted for Colin Powell in the 2016 election. In Colorado, elector Michael Baca voted for John Kasich instead of Hillary Clinton.

Larry Lessig, a Harvard law professor, argued in front of the Supreme Court that the Constitution doesn’t regulate how an elector must vote, mainly because when they are doing so, they are acting in a federal role. Lessig, who advocates for reform of the Electoral College, was nonetheless happy that a decision was made, saying:

“When we launched these cases, we did it because, regardless of the outcome, it was critical to resolve this question before it created a constitutional crisis. We have achieved that.

“Obviously, we don’t believe the court has interpreted the Constitution correctly. But we are happy that we have achieved our primary objective: This uncertainty has been removed. That is progress.”