Supreme Court justices voiced concerns Wednesday about the chaos that could ensue if Electoral College’s presidential electors could go rogue, as they weighed challenges to state laws requiring electors to follow the will of their state’s voters.
The concerns signaled a high bar the justices set for a Democrat-allied movement to chip away at the Electoral College system. The conservative and liberal wings of the high court both appeared skeptical about siding with the faithless electors, who want to rely on their personal preference when making the final decision about who occupies the White House.
“It is somewhat hard to understand the concept of something I have pledged, bound to do, I have made a promise to do something — that, that promise is unenforceable,” said Justice Ruth Bader Ginsburg, a Clinton-appointee.
Justice Brett M. Kavanaugh, a Trump-appointee, echoed questioning by Justice Samuel A. Alito Jr., a Bush appointee, about what would happen in states where the election was close if some faithless electors refused to vote for the candidate picked by the will of the people.
“Judges are going to worry about chaos,” Justice Kavanaugh said.
One of the cases stems from the Washington Supreme Court upholding fines against three of the state’s 2016 presidential electors who violated a law by not casting their votes for Hillary Clinton and Tim Kaine, the Democratic ticket that won the popular vote in the state.
The three faithless electors cast their votes for former Secretary of State Colin Powell, a Republican. They hoped it would persuade GOP electors to abandon Donald Trump and install a moderate Republican as president.
Another faithless elector who is not part of the case voted for Faith Spotted Eagle, an American Indian activist from South Dakota known for leading protests against the Dakota Access oil pipeline project.
The three Powell voters challenged Washington’s law as a violation of the Constitution, noting the 10th U.S. Circuit Court of Appeals ruled in a similar case out of Colorado that individuals “are free to vote as they choose” in the Electoral College.
The Colorado case also came before the high court Wednesday.
Nearly 30 states legally require their presidential electors to vote for the president and vice president picked by the voters or else face penalties, though every state picks its Electoral College members based on a promise to do so.
It was the court’s final oral arguments for the term. The cases had been rescheduled for the teleconference Wednesday after being delayed last month due to the COVID-19 pandemic.
Lawrence Lessig, the attorney for the Washington electors, said political pledges and promises that electors make to vote a certain way are merely a moral obligation, not a legal contract.
He noted that until 2016 no state had imposed a fine or removed an elector for breaking the pledge.
“A pledge is always … a moral obligation,” Mr. Lessig told the court.
He likened the presidential electors to members of Congress who may identify with a political party, but are protected by the Speech and Debate Clause to vote on matters based on conscience.
Colorado Attorney General Phil Weiser, who defended his state’s law, said a constitutional crisis could result if the court upholds the 10th Circuit’s ruling that condoned faithless electors.
“The Constitution gave the states authority over elections,” said Mr. Weiser.
Noah Purcell, Washington’s solicitor general who also defended the state law, said other conditions have also been imposed on electors such as residency requirements.
The justices are expected to issue a decision in the cases by the end of June, ahead of the 2020 presidential election in November.
