If The Supreme Court Lets The Electoral College Vote However It Wants, Will Chaos Ensue?

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If The Supreme Court Lets The Electoral College Vote However It Wants, Will Chaos Ensue?

Last month the Supreme Court heard oral arguments in a case challenging state laws that bind Electoral College electors to vote for the presidential candidate they are selected to support. The case was brought in response to four 2016 electors — three from Washington and one from Colorado — who tried to vote against their state’s popular vote winner, and, in the case of the Washington electors, faced fines for having broken their pledges.

These so-called “faithless electors” have long been a feature of American presidential elections, but it’s possible that the Supreme Court could shake up the Electoral College system, striking down state laws that try to guarantee electors’ votes by replacing or punishing those who don’t vote as they promised to. Justice Ruth Bader Ginsburg said the overall lack of enforcement of electors’ pledge to vote for the winner of their state troubled her, saying, “I made a promise to do something, but that promise is unenforceable.” But Justice Samuel Alito said that overturning the state laws could “lead to chaos where the popular vote is close.”

There is some truth to that. In a system where a close national popular vote can produce a close-but-different Electoral College outcome, a handful of electors refusing to uphold their pledges could indeed sow chaos. There is already controversy surrounding the Electoral College and its election of George W. Bush in 2000 and Donald Trump in 2016 — neither won the popular vote. Adding in a few faithless electors who could flip the outcome of the election might pose a significant threat to the Electoral College’s continued legitimacy. Yet, the history of presidential elections is not exactly littered with faithless electors.

In fact, during the presidential elections of the 20th century just 15 electors broke their pledge and voted for someone other than their party’s nominee. That means, on average, there was less than one faithless elector per election during this period, and none of them altered the course of any one election. This trend continued into the 21st century as well, with just one faithless elector in the 2000 presidential election and one in 2004; however, in the 2016 presidential election, there was a sharp uptick. Ten electors from six different states attempted to break ranks. That’s still not enough to have changed the outcome of the 2016 election, but it is nonetheless a significant jump in the number of defections.

So perhaps this is a sign that something has changed in our era of hyper-partisan politics and faithless electors will become more common. Then again, Hillary Clinton and Trump both faced long, drawn-out nomination battles, and they were the two most unpopular nominees in modern history. Those factors alone could have been the impetus behind some of the faithless electors’ moves in 2016.

But let’s say the Supreme Court does rule in favor of the 2016 electors and says faithless electors can’t be penalized. Would chaos ensue?

First of all, not every state has laws in place to hold Electoral College electors to their pledges. In fact, just 29 states and the District of Columbia had any type of rule on the books in 2016. The rules are inconsistent, too. In some states, like Washington, a penalty is levied, and all of the faithless electors were made to pay a $1,000 fine. And in other states, like Michigan, the votes of faithless electors are not counted; instead, those electors are replaced with someone who will vote for the nominee. That provision obviously has more teeth to it, but again, many states don’t have any such provisions at all, and yet there aren’t countless faithless electors.

And that may be because the state parties are already selecting activists who are likely to be loyal to their presidential nominee, so electors are motivated to vote as instructed even without a law punishing or removing them if they don’t. But the national parties are not powerless in this process. The Democratic National Committee, in particular, ramped up its efforts to fend off faithless electors after 2016, adding a new requirement to its convention rules that state parties’ delegate selection plans not only include their process for selecting electors, but also the steps the state will take to ensure that those electors vote for the Democratic nominee. Those measures, like the rest of the delegate selection process, had to be approved by the Democratic National Committee’s Rules and Bylaws Committee as part of the delegate selection plan.

The elector selection process still differs from state to state, but ultimately, it’s fairly centralized under the party, which helps ensure faithful electors are selected. In states like Florida and Pennsylvania, for example, the presidential nominee and their campaign select the Democratic electors. And in states with smaller Electoral College delegations, like Oregon and Utah, state party officers like the state party chair, vice chair and treasurer automatically serve as the electors from those states. There are, however, a number of states where the elector selection process is a bit more free-range. And, perhaps unsurprisingly, it was the states that selected their electors by more decentralized means that had faithless electors in 2016.

The six states where an elector tried to cast a faithless vote in 2016 — Colorado, Hawaii, Maine, Minnesota, Texas and Washington — all selected electors using congressional district and state conventions, which don’t receive as much oversight as other selection methods and can be dominated by supporters of candidates other than the eventual nominee. And unlike the process for selecting delegates to the Democratic convention, the elector selection process does not give the candidate the right to review electors.

In Washington, where the faithless elector problem was the most acute in 2016 — there were four defectors — state Democrats made the process much more centralized for 2020, moving the selection process from state and congressional district conventions to the party’s state central committee. But 17 state parties will still select electors via conventions in 2020, with 154 electors at stake in those meetings. And only seven of these 17 states (worth 53 electors) voted Democratic in 2016. So it’s possible that if there were enough defections and the vote was close, it could matter.

That said, few electors chosen this way are actually faithless. Few electors are faithless, period. It’s true we don’t know if 2016 signaled a change in norms around faithless electors and if, therefore, we might see more defections in 2020. But the bottom line is that even if the Supreme Court were to strike down state-level laws, chaos is unlikely to erupt. The guidelines put in place by parties to ensure most electors are faithful serve as a backstop.

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