Even though nearly 137 million people voted for President in the 2016 election, only 538 of them determine the President: the members of the Electoral College. These electors decide the leader of the free world—and even if their states voted for someone else, many of them can vote for whoever they want. Electors who refuse to vote for the candidate who won their state are known as faithless electors. In the 2016 election, a record-breaking number of electors refused to vote for the candidate who won their state; the constitutionality of this issue is at the heart of Colorado Department of State v. Baca, which will be argued before the Supreme Court in April of 2020.
In one of the most famous Federalist Papers, Federalist 68, Alexander Hamilton proposed the institution of the Electoral College. Hamilton intended for the system to be detached from the will of the general public. This has been the goal of the Electoral College since it decided the first presidential election in 1788, when all 69 electors voted unanimously for George Washington. Typically, states select electors who are committed to voting for the candidate of which party wins the state. These electors are called “pledged” electors: they have pledged to vote for the candidate of the party that wins the state. The Court ruled in Ray v. Blair that states can require their electors to be pledged. Faithless electors not voting for their pledged candidate is far from unheard of: in 1968, a North Carolina elector cast his vote for third party candidate George Wallace; in 1976 a Washington elector voted for Ronald Reagan instead of President Gerald Ford; in 2000, an elector from D.C. left her ballot blank as a form of protest.
Laws in over thirty states require electors to vote for the candidates they are pledged to and simultaneously allow for the dismissal of electors who break their pledges. Michael Baca, an elector from Colorado, was removed for attempting to break his pledge in 2016. Baca voted for Ohio Governor John Kasich in the first round of electoral voting in December of 2016, attempting to present him as a compromise candidate to convince Republican electors in other states to vote against Donald Trump. The elector who took his place voted for Hillary Clinton, guaranteeing Clinton all of Colorado’s nine electoral votes. Baca first filed his suit in the District Court of Colorado, where he argued that his removal was a violation of his Twelfth Amendment right as an elector to cast his vote for President. After the State of Colorado successfully argued for the case’s dismissal, Baca appealed to the Tenth Circuit. A panel of federal judges ruled that Baca’s dismissal was unconstitutional, overturning the lower court. In the majority opinion, the court held that “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote . . . with discretion.” Colorado appealed the ruling to the Supreme Court.
While Michael Baca was attempting to vote for Kasich in Colorado, three electors from Washington state were casting their ballots for a different compromise candidate; Peter Bret Chiafalo, Levi Guerra, and Esther John voted for Colin Powell. Fellow elector Robert Satiacum Jr. cast his vote for Faith Spotted Eagle, a Native American activist who had been protesting the Keystone XL Pipeline. While their votes were certified, they were each subsequently fined $1,000 for breaking their pledge in accordance with state law. Chiafalo and the electors who voted for Powell sued Washington, arguing that their First Amendment rights had been violated by the fine. The Washington Supreme Court ruled that the fine was constitutional, and the electors appealed to the Supreme Court.
Colorado Department of State v. Baca and Chiafalo v. Washington have been consolidated, and will be heard on April 28th. The question at hand is whether or not states can require electors to vote for the winner of the state’s popular vote. The Court could take several approaches to the case, and could set a precedent for either side; they could find the states’ laws unconstitutional, and that electors may vote for whichever candidate they please. There is also a chance that the decision is left to the states—in that case, the fines and bans against faithless electors would remain in place. There is even a chance—albeit a very small one—that the Court could take a bold step and set precedent that all electors must vote for the candidate who wins the popular vote of their states. Speculating on the outcomes of the case is uniquely difficult: because candidates from either party can win the Electoral College, and because faithless electors could defect from any candidate, the case is completely politically neutral. In other words, there isn’t a ruling that will inherently favor either political party.
The Roberts court is known for its cautious nature, and prefers to offer narrow rulings when possible so not to appear as politically driven as its critics allege it to be. It is likely that the Court could give a narrow ruling that leaves state laws intact. But it might be better for the Court’s more tepid inclinations to issue a ruling setting a clear precedent. The 2020 presidential election could be as close as the 2016 election, if not more so. In an election that could be decided by a very close electoral margin, it is not impossible to imagine a “nightmare scenario” in which there is a tie in the Electoral College. If that is the case, and the Court has upheld the constitutionality of faithless electors, the election will hinge one elector defecting from their candidate. However, if the Court offers a clear ban on faithless electors, a tied election would be decided by the state delegations to the House of Representatives.
While a majority of the potential impacts of Colorado Department of State v. Baca will not be seen until the 2020 election, it will have an immediate effect on states that have passed ballot initiatives to circumvent the Electoral College, such as the National Popular Vote Interstate Compact (NPVIC). The NPVIC is an agreement amongst states that have agreed to pledge their electors to the winner of the national popular vote—but the compact only comes into effect if enough states totaling 270 electoral votes ratify it, effectively overriding the Electoral College. Supporters argue that this method is simpler and more efficient than a constitutional amendment to abolish the Electoral College. If the Court sets precedent that electors are constitutionally required to vote for the winner of their state’s popular vote, it could jeopardize an initiative like the NPVIC.
The ruling in Colorado Department of State v. Baca will undoubtedly have an impact on the 2020 election, even possibly deciding the victor. Hamilton’s argument in Federalist 68 could become enshrined in constitutional law, or struck down indefinitely.