[EL] Analysis: Supreme Court Saves the Country from Potential Chaos by Ruling (Unanimously) That States May Replace or Punish “Faithless Electors”

[Rick Hasen]

Analysis: Supreme Court Saves the Country from Potential Chaos by Ruling (Unanimously) That States May Replace or Punish “Faithless Electors”<https://electionlawblog.org/?p=112845>
Posted on July 6, 2020 8:22 am<https://electionlawblog.org/?p=112845> by Rick Hasen<https://electionlawblog.org/?author=3>

The Court’s decision in Chiafalo (the Washington election case) is at this link<https://www.supremecourt.gov/opinions/19pdf/19-465_i425.pdf>. The per curiam opinion in Baca (the Colorado case), with Justice Sotomayor recused, is at this link.<https://www.supremecourt.gov/opinions/19pdf/19-518_6k47.pdf>

The decision is a great relief because a contrary decision, as I explained<https://slate.com/news-and-politics/2019/09/electoral-college-supreme-court-lessig-faithless-electors.html> last September at Slate, could have led to great chaos (a point Rick Pildes explained in more detail here<https://electionlawblog.org/?p=111392>). The opinion for 7 Justices by Justice Kagan relies a great deal on history and the strong historical power of states to set the rules on choosing presidential electors. It is a typically breezy and readable Kagan opinion, compete with references to Veep and “Hamilton.”

I understand that the motivation of Larry Lessig and his compatriots to bring this case was to try to create the conditions to blow up the electoral college and lead to a national popular vote for President. As the Slate piece explained, this is not the way to do that, much as I am no fan of the college. And I think the National Popular Vote plan is dangerous as well, for reasons Ned Foley explains in his new book<https://global.oup.com/academic/product/presidential-elections-and-majority-rule-9780190060152?cc=us&lang=en&>. The way to get rid of the Electoral College is through constitutional amendment, something not likely to happen for a while. (I would suggest a constitutional right to vote is of more pressing urgency and could pave the way for electoral college ref<https://www.nytimes.com/2020/06/29/opinion/sunday/voting-rights.html>orm as well).

A few more points of note about the decision. First, in footnote 4<https://twitter.com/rickhasen/status/1280145382240997377/photo/1> of the Court’s opinion, the Court casts serious doubt on laws that would require presidential candidates to submit tax returns as a condition to running for office. (It also suggests that racially discriminatory practices in choosing presidential electors would be unconstitutional).

Second, the Court included an escape hatch<https://twitter.com/rickhasen/status/1280149050134638592/photo/1> to these rules in the event that a presidential candidate dies between election day and the date for the electors to vote.

Third, the Court once again declined to cite<https://twitter.com/rickhasen/status/1280146453436829696> its 2000 decision in Bush v. Gore despite the fact that the case was directly on point. Only once in a Justice Thomas concurrence has any member of the Court cited that case for any reason.

Finally, as Steve Mazie notes<https://twitter.com/stevenmazie/status/1280149305639219204>, part of the reason for the unanimity (though not on the reasoning, with J. Thomas, joined in part by J. Gorsuch, getting there on a different path) is the lack of a clear ideological or partisan winner on this question. On questions with such valence, 5-4 is much more likely<https://electionlawblog.org/?p=112775>.

(More about the case from Derek Muller<https://excessofdemocracy.com/blog/2020/7/analysis-of-the-supreme-courts-decision-in-the-faithless-electors-cases>.)
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Supreme Court<https://electionlawblog.org/?cat=29>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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