Coronavirus forced the Supreme Court of the United States to hear, and share, oral arguments remotely in real time, but will the change last?
WASHINGTON – Election Day is Nov. 3, but the winner of the White House traditionally isn't official until December, when 538 presidential electors confirm the results.
On Wednesday, the Supreme Court will consider giving those virtually unknown people more than perfunctory power.
The justices, customarily allergic to politics, appear on track to decide a threshold question that haunts the way presidents and vice presidents are chosen: Must the men and women chosen on Election Day to cast ballots for the winner of their state's popular vote keep their pledge? Or can they go rogue?
Never before have these electors flipped an election. But 10 electors were disloyal or tried to be in 2016, enough to change the results of five previous presidential elections. And there's a first time for everything.
“What’s motivating both sides in this case is the need to get this resolved before things blow up in November,” says Rebecca Green, co-director of the election law program at William & Mary Law School in Virginia.
The 2020 presidential election already faces myriad challenges. Many states are seeking to expand absentee voting in the face of the coronavirus pandemic, which has relegated presumptive Democratic nominee Joe Biden to a makeshift basement studio while President Donald Trump and Vice President Mike Pence deal with staff members who have tested positive.
‘Resolve this conflict now'
Now come two cases from Colorado and Washington State that could determine whether presidential electors have autonomy under the Electoral College system to vote for whomever they choose – regardless of the results on Nov. 3.
“If we’re going to dramatically change the role of electors, obviously everyone should know that before the election,” Washington Solicitor General Noah Purcell says.
Washington's Supreme Court last year upheld $1,000 fines against three Democratic electors who cast votes in December 2016 for Colin Powell rather than Hillary Clinton, who had won the state's popular vote. They had sought to deny Trump the presidency by convincing electors to choose a different Republican candidate.
Their ultimate goal: eliminating the Electoral College that gave the Oval Office to Trump in 2016 and to George W. Bush in 2000 though both lost the popular vote in those years.
By contrast, the U.S. Court of Appeals for the 10th Circuit, based in Denver, ruled that a rogue vote cast by a Democratic elector in Colorado for Republican John Kasich rather than Clinton deserved to be counted.
The Supreme Court decided in January to hear both appeals, lest it be forced to intervene in a potential emergency situation after Election Day should an electors' rebellion this fall potentially affect results.
“This court should resolve this conflict now, before it arises within the context of a contested election,” Harvard Law School professor Lawrence Lessig urged on behalf of the three Washington State electors.
“As the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this court to resolve the question of electoral freedom within the context of an ongoing contest,” he warned.
‘Playing with fire'
Under the Constitution, each state appoints electors to cast the electoral ballots apportioned by the popular vote. Thirty-two states and the District of Columbia require electors to vote for their party's candidate. Some block nonconforming ballots from being counted or replace electors who don't toe the line. A few states provide for criminal penalties.
Washington's Supreme Court ruled that the state was within its rights to issue the first-ever fines for so-called faithless electors.
“An elector acts under the authority of the state, and no First Amendment right is violated when a state imposes a fine based on an elector’s violation of his pledge,” that court ruled in an 8-1 decision.
The 10th Circuit set a different precedent in the Colorado case. “The states may not interfere with the electors’ exercise of discretion in voting for president and vice president by removing the elector and nullifying his vote,” the federal appeals court ruled.
Green notes that the job of electors is not always a formality. For example, a study by FairVote found 165 electors over the course of history who exercised discretion.
“There is an argument to be made that it’s not disruptive,” she says. “But it’s certainly scary.”
The liberal Campaign Legal Center urged the court to uphold states' rights to bind its electors to the candidate chosen by voters. To do otherwise, the group said, would “invite corruption and impropriety.”
“It does seem like such a terrible idea,” says Paul Smith, the group's vice president for litigation and strategy. Trying to eliminate the Electoral College by empowering 538 electors, he says, is “a little bit of playing with fire.”
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