This post will talk about everyone’s favorite (insert sarcasm emoji) election-year topic: the Electoral College. And unless you think that it hasn’t made it’s way to the Supreme Court, it has, in two cases to be argued in April. They will tackle an aspect of the College that you maybe haven’t thought about: what if an elector decides to vote their own conscience rather than the way the state directs? What if they are, in fact, “faithless electors”? Can a state mandate that they follow the law, even to the point of fining them or removing them as an elector? These are the issues the Supreme Court will take up.
So what is the Electoral College and how does it work? It is, contrary to what some think, not all that complicated. While the mechanics of tallying and transmitting the vote has a lot of steps, the basic structure and functioning of the College are straightforward: electors are selected, they meet and vote for the President and Vice President, and then the votes are counted by Congress. More detail shortly, but first some history.
The Electoral College was the creation of the Founding Fathers, although the term “electoral college” does not appear in the Constitution. (Article II, Section 1 and the 12th Amendment of the Constitution are where “electors” can be found, as well as the 23rd Amendment). The Founders wanted a compromise between the election of the President by a vote in Congress on the one hand and the election of the President by popular vote on the other. So if you don’t like the Electoral College system (and a lot of people do not) you will have to amend the Constitution. No other part of the Constitution has seen more proposals to reform or eliminate it: 700 have been introduced in Congress over time, none of them successful.
So how does it work? The College is made up of 538 electors. Every state gets the same number of electors as it has members in its Congressional delegation, 2 for the Senate and one for each House member. The District of Columbia gets three as well, courtesy of the 23rd Amendment. A majority (270) is needed to win. The electors themselves are chosen by the states by the respective political parties. The process varies, but usually, it is done by the party’s central committee or at the state party convention. They are most often party officials, officials in the state or people in the party who have an affiliation with the party’s candidate, but note: Senators and members of the House cannot be electors (Article II, Section 1).
In the general election, when people vote for their candidate they are voting to select their state’s electors. Elector’s names may or may not appear on the ballot below the name of the Presidential candidate, depending on the state. The winning Presidential candidate’s slate of electors is appointed as the state’s electors (except Maine and Nebraska which have proportional distribution of electors). The votes cast by your state’s electors at their meeting after the general election are counted by a joint session of Congress on January 6 after the general election.
So when you vote for a Presidential candidate, you aren’t actually voting directly for the President (remember, the Founders did not want that). You are telling your state which candidate you want your state to vote for at the meeting of electors. The states use the popular vote to appoint the slate of electors.
But what happens if an elector does not vote for the person that won the state when it comes time to tally the electoral votes? That is the issue the Supreme Court will take up on April 28th in two cases: Chiafalo v. Washington, No. 19-465 and Colorado Department of State v. Baca, No. 19-518. Chiafalo concerns the enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs. Baca considers whether a presidential elector who is prevented by their appointing state from casting an electoral-college ballot that violates state law lacks standing to sue their appointing state because they hold no constitutionally protected right to exercise discretion, and whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots. Both voted for a different candidate than the popular vote in their states. Chiafalo was fined $1,000; Baca was removed as an elector.
There is no Constitutional provision or Federal law that requires electors to vote according to their state’s popular vote. Some states–like Wahington and Colorado–require it, with penalties like fines or removal. Basically, electors make a pledge to follow the popular vote, with consequences if they don’t live up to that pledge. Over 99% of electors over time have honored that pledge.
What to do now about these–and other–“faithless electors”? The Supreme Court has held that the Constitution does not require that electors be completely free to act as they chose, and therefore political parties may extract pledges as can states. The state of Washington raised this issue in their opposition to granting cert (review by the Supreme Court), arguing that the issue was settled, but the case was taken along with Colorado’s.
As always, I will let you know.
And ask questions.
And go vote, even if it is for a slate of electors. It matters. A lot.