Supreme Court rules states can remove 'faithless electors'

The Hill ^ | July 6, 2020 | Harper Neidig

[jazusamo]

The Supreme Court on Monday ruled that states can prohibit their Electoral College representatives from disregarding voters when casting their ballots in presidential elections.

The unanimous decision, arising out of a case from Washington state, essentially gives states the right to outlaw "faithless electors" who cast their votes for people other than those chosen by their voters.

"Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does," Justice Elena Kagan wrote in the majority decision.

--This breaking news report will be updated.

[centurion316]

“We simply do not know what we are talking about until we see the opinion.”

Here is the opinion:

https://www.supremecourt.gov/opinions/19pdf/19-465_i425.pdf

The States still have considered leeway in their method of selecting electors and what instructions may be given to electors. But electors must follow the instructions. What states cannot do is to enter into a compact under which multiple states conspire to formulate a certain instruction to electors.

[hanamizu]

The Constitution does not require elections for the Electors. State legislatures are free to choose Electors, it’s just that all states have chosen to have the Electors elected.

[hanamizu]

” Electoral College vote and if so, how does that work?”

---

A state’s electors meet to vote in the state capita, so removing and replacing an elector would be fairly easy—if the legislature is in sesson.

[centurion316]

The two states directly involved in this ruling are Washington and New York. Both states have now been told by SCOTUS that their electors are BOUND to vote for the winner of the STATES Popular Vote results.

This is true, but only because these two states have current laws that require them to instruct their electors to vote for the winner of the States vote. They could change their laws to do it in a different way, but they can't do it under a mechanism via a compact between states.

[kabar]

Will of which people? The state or nationally? See my post #55. NPV seems to believe they are unaffected by the ruling.

[Repeal 16-17]

It isn’t unconstitutional.

That's highly debatable. It is an interstate compact, yet it claims it will go into effect with Congressional consent. It also prohibits any member State from immediately withdrawing from the Compact. Today's decision says each State and DC decides if its electors are to be bound by a pledge. So if a member State wants to withdraw from the Compact, it can as soon as it wants.

Finally, by the Compact's terms, it doesn't go into effect unless States forming a majority of electoral votes sign on. Right now, not enough States have signed on and some Red States would have to sign on; that's unlikely to happen.

As of right now, the Compact is not in effect. If it ever gets enough States to join, it will be in court well beyond the election.

[Political Junkie Too]

If the thrust of the opinion as to the effect that the Constitution awards the states unfettered prerogative to control their electors, this could be a very very dangerous opinion for us.

I have been an early opponent of this decision.

It is my belief that states can control the METHOD of selecting electors, but once chosen those electors have free will to vote their conscience. As an analogy, prior to the 17th amendment, legislatures had control of the METHOD of choosing Senators, but they could not control how those Senators voted in Congress.

Furthermore, the 12th amendment says:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President... and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The 12th amendment makes it clear that it is too late for a state to take corrective actions against a faithless elector once those sealed ballots are opened in Congress and counted. The vote of the elector will have already happened. The state cannot change the vote; they can only change the elector to one who will vote differently, but that will be too late since the original elector has already voted and been counted in Congress by the time the faithlessness is discovered.

In effect, this ruling by the Supreme Court nullifies the 12th amendment procedure for counting electors' sealed ballots.

-PJ

[campaignPete R-CT]

Im reading the decisions now. See 57

[rlmorel]

I don’t think it does...I didn’t read it closely, but I thought it was a narrow ruling on this one thing.

[rlmorel]

Thank you for that post, centurion316.

I am plenty worried about that one.

And the extended voting. And the ballot harvesting. And the ranked voting...

LOL, well, it is nice to know at the least they have signaled they will not support the National Popular Vote...so there is that.

One step at a time.

[kabar]

What do you think of the separate Thomas/Alito opinion?

[kabar]

Thomas/Gorsuch opinion

[nathanbedford]

I agree with your views and I have said so:

Not having read the opinion, I can comment from sublime ignorance.

It seems to me the purpose of the electoral College is to interpose the will of that college between the mob and the office of the President of the United States. To declare that that discretion may be removed from electors, presumably elected because of their reputation for discretion, is to pervert the purpose of the electoral college which is to provide a check on democracy.

Similarly, a holding that says that a state may require a pledge of an Elector, now apparently justification for enforcing control over the Elector, is contrary to the purpose of the Framers.

Any reference in the opinion justifying itself because it furthers a democratic vote, written by extreme leftist Elena Kagan, betrays a contrary understanding from framers.

… I am in the midst of Thomas' dissent right now

[Repeal 16-17]

The National Popular Vote law was not the subject of these cases, and the decision does not affect the operation of the National Popular Vote law.

There is no law! It is a proposed interstate compact that will never go into effect if no Red States become apart of it.

[campaignPete R-CT]

No. Baca in COL voted for Kasich. He was immediately removed and an alternate took his place.

[Political Junkie Too]

Baca in COL voted for Kasich. He was immediately removed and an alternate took his place.

Did he vote by "sealed ballot," and was that ballot transmitted to Congress, opened, and counted in front of Congress?

If not, then the procedures of the 12th amendment were not followed.

How was an alternate chosen and given a second vote if it was already counted in front of Congress? How does an alternate get to vote later than the rest AFTER the results of other states have already been announced?

-PJ

[KrisKrinkle]

"A state’s electors meet to vote in the state capita, so removing and replacing an elector would be fairly easy—if the legislature is in sesson."

But how is the elector proved faithless except by voting and if the electors have already voted can that vote be invalidated?

And we don't really elect the president, we elect the electors. So they would be replacing and elected elector with an unelected one. Something about that seems wrong.

[kabar]

I suggest you take a look at NPV website. I have been following this movement for years. It has advanced tremendously and is a serious threat to make an end run around the Constitution and the Electoral College.

t is a proposed interstate compact that will never go into effect if no Red States become apart of it.It has been enacted into law in 16 jurisdictions with 196 electoral votes (CA, CO, CT, DC, DE, HI, IL, MA, MD, NJ, NM, NY, OR, RI, VT, WA). The bill will go into effect when enacted by states with an additional 74 electoral votes.

It is in various phases of passage in many other states, including red ones.

[ridesthemiles]

Electoral College version of Jury Nullification.

[nathanbedford]

Justice Thomas in his opinion, concurring only in the judgment but not in the reasoning of the majority, does a good job of exposing the shallowness of the majority opinion. I believe the majority opinion was motivated by a desire to extend democracy so it resorted to backwards reasoning to get to the desired result. In other words, the majority in its neo-modern fixation to get ahead of history, responds not to the Constitution but to a more "modern and enlightened" philosophy.

It is also not clear to me that Justice Thomas is right in saying that the power to control electors' votes reverts to the states under Amendment 10. I believe this power was justly granted, as you say, to the states to prescribe the manner of the electors getting office, but does not grant the states the power to control them once in office. Your recital of the procedural steps in counting the balance of the electors is very persuasive that the framers could not have contemplated the interposition of state rule over the electors' votes.

The reservation to the states of those rights not delegated to the federal government would speak only if the framers had no intention to fix the power in electors to vote their conscience. Once delegated, the 10th Amendment does not speak. To say that it was not delegated seems to me to be a stretch given the procedural steps and, more importantly and more persuasively, given the Framers' felt need to insulate government from the rages of the mob. In other words, to justify depriving electors of their free vote because it reflects the desire of the majority, is expressly opposite to the very purpose of their existence.

To this extent, I disagree with Justice Thomas.