WASHINGTON — The Supreme Court justices said Wednesday they saw a danger of “creating chaos” after November’s presidential vote if electors were freed to defy their state’s popular vote and cast ballots in the Electoral College for the candidate of their choice.
In a close election, they noted, a few electors could have the power to flip the outcome.
Under the Constitution, the president is not elected by direct popular vote, but instead by a majority of the votes cast by states in the Electoral College. Since the early 1800s, states have appointed a slate of electors, who are pledged to support the candidate who wins the most votes in that state.
But in recent elections, including in 2016, some electors have attempted to vote for other candidates.
Harvard Law professor Lawrence Lessig argued that electors have a constitutional right to “exercise discretion” and vote as they wish.
Most justices sounded skeptical of that assertion Wednesday as the court heard arguments — via telephone conference due to the coronavirus outbreak — in two related cases, Chiafolo vs. Washington and Colorado vs. Baca.
Justice Samuel A. Alito Jr. told Lessig his theory could “lead to chaos.”
If the outcome in November is very close, he said, “the losing party or elements within the losing party will launch a massive campaign to influence electors. There would a long period of uncertainty about who the next president was going to be … Do you deny that is good possibility if your argument prevails?” he asked.
“We don’t deny it’s a possibility,” Lessig replied. “We agree that of course the possibility exists you could flip electors.”
But Lessig said the Constitution provides that the decision be left in the hands of electors, not state voters, and that right should not be infringed. Even if there were allegations that an elector took a bribe, Lessig said, a state should not be permitted to prevent that elector from voting unless the charges were proved in court.
Alito noted that Lessig in 2016 had urged electors to defy their states and choose Hillary Clinton for president because she won the popular vote. But the two cases heard Wednesday arose when four electors in Washington and Colorado refused to cast their ballots for Clinton, even though she won a majority in both states.
In August, the 10th U.S. Circuit Court of Appeals in Denver ruled for the first time that electors had a free-speech right to defy their state’s popular vote.
Meanwhile, the Washington Supreme Court rejected the free-speech claim and upheld the state’s decision to fine electors who refused to vote as they had pledged.
State attorneys urged the high court to take up the issue and rule before this year’s presidential election.
Lessig said framers of the Constitution in 1787 viewed electors as playing a crucial role. Electors were envisioned as smart, informed local leaders who would be better suited to pick the president than a population of less-educated, easily manipulated citizens.
