States can require Electoral College voters to endorse the winner of their state’s popular vote, the Supreme Court ruled unanimously on Monday, in a major dispute that could have an impact on the November presidential race.
Judge Elena Kagan, who wrote the court’s opinion, wrote that “nothing in the Constitution expressly prohibits States from removing the discretion of voting of presidential electors.”
Kagan wrote that the Constitution gives states “broad power over the electors” and “the electors themselves have no rights.”
“Early in our history, states decided to link voters to the presidential elections of others, be they legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years,” Kagan wrote. .
Electoral college voters in Washington and Colorado state filed two cases that refused to endorse Democrat Hillary Clinton in 2016, despite her victories in those states. In both cases, Democratic voters were making great efforts to prevent President Donald Trump from taking office after it was evident that he had won enough votes to conduct the election.
Under the complex rules that govern the US elections, it is the Electoral College vote that ultimately determines the winner of the presidency.
Virtually every state, in addition to Maine and Nebraska, allocates all of its Electoral College representation to voters who have pledged to vote for the state popular vote winner. And most states, including Washington and Colorado, have laws that require voters to vote for their promised candidate. Voters argued that the application of those laws was unconstitutional.
Micheal Baca, the Colorado elector, was replaced before he could vote for former Ohio Governor John Kasich. Three Washington voters were hit with fines of $ 1,000 after voting for former Secretary of State Colin Powell.
The lower courts were divided on the issue, and the courts in Colorado and Washington eventually fell on opposite sides. The Colorado federal appeals court sided with Baca, while the Washington Supreme Court sided with the state and upheld the fines.
Monday’s Supreme Court action upheld the Washington court’s decision and reversed Colorado’s decision. Judge Sonia Sotomayor recused herself from the Colorado case.
Judge Clarence Thomas, accompanied in part by Judge Neil Gorsuch, wrote separately to express different reasons for his vote. Rather than discovering that the Constitution gives states power over voters, Thomas wrote that the Constitution said nothing about it.
“When the Constitution is silent, authority rests with the States or the people,” wrote Thomas.
While “infidel voters” have never affected the outcome of a presidential race, such an outcome was plausible in a future contest, the voters’ attorneys told the judges. Larry Lessig, an attorney for Washington voters, said in court documents that a change of just 10 voters would have been enough to alter the results of five previous presidential elections.
For that reason, attorneys asked the superior court to resolve the matter before the November election between Trump and alleged Democratic candidate Joe Biden, the former vice president.
Lessig, in a statement released after the opinion was announced, said that “regardless of the outcome, it was critical to resolve this issue before it created a constitutional crisis.”
“We have succeeded. Obviously, we do not believe the Tribunal has interpreted the constitution correctly. But we are pleased that we have achieved our primary goal: this uncertainty has been removed. That is progress,” Lessig said.
Jason Harrow, who represented Baca, said that while “we do not believe that the Supreme Court has correctly interpreted the Constitution, at least we know whether the laws binding on voters can be enforced in the upcoming elections.”
Representatives from Washington and Colorado did not immediately respond to requests for comment.
The case of Washington is Chiafalo v. Washington, No. 19-465. The case of Colorado is the Colorado Department of State v. Baca, No. 19-518.
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