The Supreme Court on Monday ruled unanimously that states can punish or remove rogue members of their Electoral College who refuse to cast their votes for the presidential candidate they were pledged to support.
In a 9-0 ruling, the court’s opinion, arising out of a case from Washington state and in Colorado said presidential electors must act as their states require, with a fine imposed just like in Washington state, and in Colorado, the removal of an elector are both constitutional.
Writing for the majority, Justice Elena Kagan said allowing punishment of wayward electors was consistent with the Constitution and American tradition.
“The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President,” Kagan wrote in her majority opinion. “Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so.”
Kagan cited the appointments power in Article II, Section 1 of the Constitution, which she said “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” Such a constraint, Kagan wrote, does not exist in the Constitution.
“The Constitution is barebones about electors,” Kagan wrote. “Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives.”
Justice Clarence Thomas reached the same ultimate conclusion, but wrote separately to explain his different reasoning said the Tenth Amendment, reserving unenumerated powers to the states and people, should be read to allow states the power to police their electors.
“Powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power,” Thomas wrote, in an opinion partially joined by Justice Neil Gorsuch.
In 2016, seven of the 538 electors went rogue, attempting to vote for someone other than their pledged candidate. Three Democratic electors in Washington state voted for former Secretary of State Colin Powell instead of Hillary Clinton. The vote was counted, but Washington state fined the three Democratic electors $1,000 each, prompting a legal challenge who argued that the state law restricting their Electoral College vote was unconstitutional.
In Colorado, a Democratic elector, Michael Baca attempted to cast his electoral ballot for former Ohio Governor John Kasich, although Clinton won the state’s popular vote. Colorado’s Secretary of State refused to count the vote and moved to replace him as an elector.
Four “faithless electors” from Colorado and Washington state who did not conform to the popular vote in the 2016 election sued, claiming that states can regulate only how electors are chosen, not what comes later.
Baca and two other electors challenged Colorado’s law that binds them to the outcome of the popular vote, arguing it is unconstitutional. The 10th U.S. Circuit Court of Appeals sided with Baca, ruling he should not have been removed as a presidential elector, as the Constitution suggests electors “are free to vote as they choose in the Electoral College.”
Justice Sonia Sotomayor took no part in the decision of the dispute involving faithless electors in Colorado. She recused herself from the case due to her personal friendship with one of the electors who challenged Colorado’s law.
Thirty-two states and the District of Columbia have laws requiring their electors to abide by the outcome of the election and to vote for a pledged candidate. But only 15 of those states, including Colorado, have laws allowing states to remove, penalize, or simply cancel the votes of the rogue electors.
Monday’s decision comes four months before the 2020 presidential election to hamper any potential effort from faithless electors from swaying to defy the popular vote in their states.