The left has been trying to get rid of the electoral college for years and now they appear to have their best chance ever: a case in the Supreme Court.
The issue is basic to our republic: are the 538 presidential electors bound by law and tradition to vote for the winner of the election in their states or are they free agents? In the beginning, voters cast ballots only for electors. They were supposed to know who those electors supported for president.
The 12th Amendment changed that so that electors could cast one vote for president and one for vice president. The electoral college remained, but voters in each state determined who they voted for.
There are several ways electors are chosen today, but most state laws require those electors to vote in accordance with the results of the election in their state. The Supreme Court will decide whether electors are free to disregard laws directing them to back the candidate who prevails in their state’s popular vote.
The case the court will be hearing today involves an elector from Colorado, Michael Baca, who refused to vote for Hillary Clinton and voted for John Kasich instead. The state threw out his ballot and found another elector to vote for Clinton, but Baca sued, saying the state had no right to do that. An appeals court agreed with him, so now it’s up to the Supreme Court to either uphold tradition and state law or allow our elections to devolve into chaotic messes.
Baca told NBC News that after Donald Trump was declared the apparent winner in November: “I thought we would need electors who would choose a moderate compromise candidate. We wanted to put our country before party and maybe throw the election (into) the House of Representatives.”
The argument made by Baca’s lawyers is compelling.
States are free to choose their electors however they want, the court said, and can even require electors to pledge their loyalty to their political parties. But once the electors are appointed and report in December to cast their votes, they are fulfilling a federal function, and the state’s authority has ended.
A second case involving electors from the state of Washington voting for Colin Powell is not so much about state law requiring electors to vote for the winner of the election in their state but about fines imposed on the electors for not remaining “faithful” to their pledge.
Washington made some interesting points in their brief.
If the electors are right that they are free agents, “a state could not remove or sanction an elector after appointment even if it learned that he was offering his vote to the highest bidder, was being blackmailed by a foreign power, or had lied about his eligibility to serve,” Washington state said in its court brief.
The lawyers for the electors, however, said the states have no power to compel an elector’s choice.
“The structure of the Constitution, as interpreted by this court over our 230-year history, prohibits the states from interfering with the exercise of this plainly federal function,” said Lawrence Lessig, a Harvard law professor involved in both cases.
If the “faithless elector” argument wins the day, the electoral college will be doomed to irrelevancy. We may as well drop it and go to the popular vote deciding the outcome. What would be the point of having an election anyway? In a sense, we would return to the time when electors were elected as “wise men” because the people couldn’t be trusted with choosing their own leader. Now, electors could vote for anyone they choose — even someone not on the ballot!
That’s why this is a ploy by the left to undermine the electoral college or get rid of it completely. Many would shed no tears if that happened. It’s seen as an anachronism by some, superfluous by others. But some of us believe the electoral college is a vital component in our republic, maintaining the federal character of the United States.
The stakes for the Supreme Court rarely get higher.