The Supreme Court ruled unanimously Monday that a state may require Presidential electors to support the winner of its popular vote and may punish or replace those who don’t, settling a disputed issue in advance of this fall’s election.
Justice Elena Kagan wrote for the court as it considered for the first time the issue of “faithless electors” and whether the Constitution sees members of the electoral college — whose votes ultimately elect the President — as representatives of the intent of their state’s voters or as independent thinkers.
The Washington state law at issue “reflects a tradition more than two centuries old,” Kagan wrote. “In that practice, electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.”
In an opinion that referred to both the Broadway musical “Hamilton” and the HBO sitcom “Veep,” Kagan added: “The State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution — as well as with the trust of a Nation that here, We the People rule.”
Lower courts had split on the issue, with one saying the Constitution envisions the electors as free to vote their consciences without fear of punishment or removal.
It was one of the rare political cases at the court that seemed not to favor one political party over another, which might explain the unanimity. (Justice Clarence Thomas disagreed with the majority’s reasoning but not the outcome).
Red and blue states alike urged the justices to settle the matter in advance of the “white hot” glare of November’s election. They said they feared that a handful of independent-minded members of the electoral college would decide the next President.
The court’s decision doesn’t eliminate that possibility completely. Not all states explicitly require conformity, and the opinion does not force them to set up such systems. Not all scenarios are covered. After she mentioned that the most rogue electoral votes were cast in 1872, when one of the candidates died after Election Day, Kagan wrote: “Because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.”
Also not before the court was an initiative by some states to pledge their electors to the winner of the national popular vote, rather than their own statewide totals.
The court considered cases from the states of Washington and Colorado. Washington moved to fine Peter Bret Chiafalo and two others $1,000 after they voted for former Secretary of State Colin Powell when the electoral college convened after the 2016 election. They had pledged to vote for Hillary Clinton, who won the state’s popular vote.
Colorado replaced Micheal Baca after he said he intended to vote for Ohio’s then-governor John Kasich (R) instead of Clinton, who won his state. Baca was part of a movement to try to deny Donald Trump the presidency.
As the court’s opinion noted of the 2016 contest: “Only seven electors across the Nation cast faithless votes — the most in a century, but well short of the goal. Candidate Trump became President Trump.”
The Washington Supreme Court ruled for the state, saying the Constitution’s directive that gives states the power to select members of the electoral college also means they can set the standards those electors must follow, such as living up to their pledge to support the state’s popular-vote winner.
A panel of the U.S. Court of Appeals for the 10th Circuit went the other way. It said Colorado’s control ended with deciding how electors from the state are chosen. From there, it said, the Constitution envisions that the 538 electors are free to vote their minds in deciding who should be President and Vice President.
All but two states have winner-take-all systems, and 32, plus the District, require those running to be electors to pledge to support the state’s winner. Most simply expect the electors to honor the statewide result — the electors are chosen by the winning party, after all. Only 15 have penalties for punishing or replacing electors who break their word or have a change of heart.
Still, some states worried that faithless electors could determine the outcome. The 2000 election, for instance, was decided by five electoral votes.
Kagan acknowledged that history shows that a number of votes cast by rogue electors were counted by Congress. But none came close to affecting the election, she wrote.
“Since the founding, electors have cast some 180 faithless votes for either President or Vice President,” she wrote. “But that is 180 out of over 23,000. And more than a third of the faithless votes come from 1872, when the Democratic Party’s nominee (Horace Greeley) died just after Election Day. Putting those aside, faithless votes represent just one-half of one percent of the total.”
Kagan said both history and the “barebones” instructions in the Constitution weigh in favor of state restrictions.
The challenging electors said the Constitution’s words about “electors” voting in a ballot for President require them to have freedom of choice.
Kagan noted their argument that Alexander Hamilton, in the Federalist Papers, “praised the Constitution for entrusting the Presidency to ‘men most capable of analyzing the qualities’ needed for the office, who would make their choices ‘under circumstances favorable to deliberation.’?”
But, she wrote, “even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.”
Harvard law professor Lawrence Lessig had represented those asserting the independence of electors.
“When we launched these cases, we did it because regardless of the outcome, it was critical to resolve this question before it created a constitutional crisis,” he said in a statement. “Obviously, we don’t believe the court has interpreted the constitution correctly. But we are happy that we have achieved our primary objective — this uncertainty has been removed. That is progress.”
SUMMARY:Police in Hong Kong have tightened their siege on the campus of the Polytechnic University, where hundreds of protesters are trapped inside. It’s the latest bout of violence in nearly six months of demonstrations -- one China is warning it won't let go too far. Nick Schifrin reports and talks to Kurt Tong, former U.S. Consul General to Hong Kong, about the protesters’ strategy and U.S. response.
SUMMARY:Hong Kong will face its first electoral test since anti-government protests began in June. The District Council elections are usually focused on local community issues and will not change Hong Kong’s political system. But more than half of Hong Kong’s population has registered to vote in what is seen as a timely referendum on support for the movement. Special correspondent Divya Gopalan reports.
SUMMARY:Hong Kong saw a high voter turnout in the local district council polls on Sunday in which 452 seats were at stake. The election, which was peaceful, is being seen as a referendum on the conflict between the city’s administration and the ongoing pro-democracy movement that has gripped Hong Kong for over six months.New York Times reporter Austin Ramzy joins Hari Sreenivasan for more.
SUMMARY: Florida’s governor’s race is one of the most watched in the country. It pits former congressman Ron DeSantis [R] against Andrew Gillum [D] the mayor of Tallahassee. The outgoing governor, Rick Scott, is challenging incumbent Democratic Senator Bill Nelson. Close races are also unfolding in at least five congressional districts. Judy Woodruff reports on tough races up and down the Florida ballot.
SUMMARY:Florida is yet again proving to be a swing-state election battleground. How do voters in the Tampa and St. Petersburg area see the midterms and other pressing issues? Judy Woodruff talks to five residents, ranging in age and political persuasion.
SUMMARY: In the last two governors’ and presidential races, the winners in the state have been determined by razor-thin margins. This year, the results could hinge on the participation, or lack thereof, of three groups: retirees, young voters, and an influx of Puerto Ricans. Yamiche Alcindor reports on the turnout efforts.
SUMMARY:From rising sea-levels to toxic algae, Florida voters have a host of water problems on their minds this election season. Governor and Republican Senate candidate Rick Scott saw his poll numbers slide as ‘red tide’ algae bloomed. Scott’s critics blame him for cuts to environmental programs. His supporters say a Scott win may mean more help from the Trump administration. Lisa Desjardins reports.
SUMMARY: Tamara Keith of NPR and Florida political expert Susan MacManus join Judy Woodruff in Tampa for a special Politics Monday. They discuss Trump’s strategy in the “Sunshine State,” his response to recent violence and voters’ concerns about the direction of the country.
SUMMARY:The 2018 midterms mark the first time most of those born in the year 2000 can vote in a national election. The PBS NewsHour Student Reporting Lab's Mason Berger reports on how organizations in Florida are trying to mobilize young voters around issues like the cost of college and gun violence.
SUMMARY: The issue of trade, and whether our deals are helping or hurting American workers, is resonating with many prospective voters this election season. For a closer look at how U.S. trade policy is playing out in the presidential race, Hari Sreenivasan talks to Thea Lee of the AFL-CIO and Matthew Slaughter of Dartmouth University.
HARI SREENIVASAN (NewsHour): As the candidates campaign in Pennsylvania, Indiana and elsewhere, one of the issues resonating strongly this year is trade, and whether it's helping or hurting the American economy and its workers.
It's been a long time since trade policy played out this way in a campaign.
This week, our colleagues at NPR have been looking more closely at these issues as part of an ongoing series of reports we are jointly doing about issues on the campaign trail.
For more on how trade is playing out in the race for the White House, I am joined by Thea Lee. She's deputy chief of staff at the AFL-CIO and an international economist. And Matthew Slaughter, dean of the Tuck School at Dartmouth College. From 2005 to 2007, he served on the Council of Economic Advisers to President George W. Bush.
Thea Lee, so, why is this resonating so much right now?
THEA LEE, Deputy Chief of Staff, AFL-CIO: You know, I think we have hit a breaking point.
American workers have really not benefited from a lot of changes in the economy over the last couple of decades. We have seen that real wages are essentially flat for more than four decades. And so we have had a period of tremendous economic growth and technological innovation and globalization, and yet American workers are working harder than ever.
They're more educated than ever. More people in each family are working, and they're not really making ends meet. And trade has been a key contributing factor. It's not the only factor. It may not even be the largest factor. But it is a key policy choice that we have made.
And when we have a decision about a big trade agreement like the Trans-Pacific Partnership, this focuses the attention. And I think we have seen candidates really take advantage of that attention on trade right now, and workers are responding and it's resonating.
HARI SREENIVASAN: Matthew Slaughter, any other reasons that this is catching on right now?
MATTHEW SLAUGHTER, Dartmouth College: I think Thea is right that the American workers, a lot of them sitting around their kitchen tables thinking about voting, they have not performed as well as they had in the past.
They're concerned about their prospects. They're concerned about their children. And yet I think what's important to keep in mind is trade in particular, and globalization more generally, they have generated large gains for America overall over the many decades.
And with the right kind of policies going forward, more global engagement can help more American families in the future as well.
SUMMARY: What do Americans think about Washington politics and productivity over the last two years? Across the political spectrum, one thing that many seem to agree on is that both parties share blame for dysfunction and stasis. Judy Woodruff talks to voters in Columbus, Ohio, about their hopes for the new Congress.
JUDY WOODRUFF (NewsHour): Well, now that the President and congressional leaders are getting down to business, we thought it was a good time to check in with voters about what they expect from Washington right now.
We picked a Midwestern state you hear a lot about in presidential election years.
GOV. JOHN KASICH, (R) Ohio: I, John Richard Kasich…
JUDY WOODRUFF: We showed in Ohio on the same day Republican Governor John Kasich was being inaugurated for a second term and, for football fans, arguably an even bigger event, as Ohio State University’s beloved Buckeyes were about to face Oregon in the college playoff championship.
Despite this, we still found people across the political spectrum who were willing to talk to us.
I am Retired U.S. Navy (22yrs) and a Vietnam Veteran. After my Navy retirement I was in the computer related industry, now retired. In 2000 I was a registered Republican and voted for George W. Bush. Six months of having Bush in the Whitehouse forced me to re-evaluate my political stance. I had always thought of myself as a Moderate Republican, but was a Republican by "default" NOT because of close examination of the GOP. Due to what has happened in America since 2000, I now consider myself a progressive, and registered as a Non-Affiliated voter.
*Anti-First Amendment policies that attempt to turn America into a theocracy by enshrining ANY religious belief as law.
* Any attempt to suppress human or Constitutional rights.
* Any law or policy that supports discrimination based on religion, ethnicity, race/color, gender, sexual orientation, or any law that does NOT support Equal Treatment under the law.
*Any law or policy that attempts to suppress Freedom of the Press or Free Speech.
LINK DISCLAIMER:
There is no guarantee that any link provided in this blog will always work, especially for older links. The validity of any link is governed by the source-site policies. Some sites will archive articles and require subscription to access. Very small sites, such as a local town newspaper, may not archive at all.
