by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court on Wednesday heard two cases asking whether members of the Electoral College are bound by laws requiring them to support the winner of the popular vote in their state.
Wednesday’s cases involve six electors who were fined or disqualified because they voted for candidates of their own choosing in 2016, instead of abiding by the result of the vote in their state. The justices seemed ready to say that laws punishing so-called faithless electors are constitutionally permissible. Thirty-two states and the District of Columbia have such laws. …
… “Where the popular vote is close and changing just a few votes would alter the outcome or throw it into the House of Representatives, the rational response of the losing political party … would be to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be,” Justice Samuel Alito told Lawrence Lessig, a Harvard Law School professor who represented the faithless electors before the Court.
Justice Brett Kavanaugh said Alito’s warning might be a good reason to invoke “the avoid chaos principle of judging, which suggests that if it’s a close call or a tiebreaker, that we shouldn’t facilitate or create chaos.”
In general, the Court seemed comfortable giving the individual states some leeway. Justice Elena Kagan spoke for several members of the Court when she said evidence from the Constitution appears to cut for and against the rebel electors. If that’s so, perhaps “the best thing to do is leave it to the states and not impose any constitutional requirement on them,” she said.
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