The decision, which explores the history of the Electoral College with a few asides to modern culture, was the last appeal for Peter Chiafalo, Levi Guerra and Esther John, whose failed effort to keep Donald Trump from becoming president fizzled almost four years ago. Such a ruling, they thought, would be viewed as so absurd that there would be a popular uprising to change the Constitution, ditch the Electoral College and embrace the national popular vote as a better method for choosing a president.
Monday's decision brought a sigh of relief from election experts, who anxious that if Electoral College delegates were free to vote as they chose, the 2020 election would have turned into a free-for-all, with no rules to prevent corruption and manipulation, with delegates offered gifts and even cash for their votes, and blackmail also a possibility.
Justice Samuel Alito observed that if the popular vote is close, the possibility of "changing just a few votes" [in the Electoral College] would rationally "prompt the losing party.to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be". "That is progress", Lessig, an open critic about the Electoral College political system, said.
The cases that the court considered were brought after four Electoral College members from Washington and Colorado tried to vote against their state's wishes in 2016. Laws that remove or penalize delegates reflect "a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State's voters have chosen". The outcome of the election would be up to the House of Representatives.
Washington, following the 2016 election, strengthened its law so faithless electors are removed and replaced with an alternate if they don't follow the will of the voters.
In Colorado, an elector voted for former governor of Ohio John Kasich instead of Clinton.
"Among the devices States have long used to achieve their object are pledge laws, created to impress on electors their role as agents of others", Justice Elena Kagan wrote in the court's opinion. It was passed in the late 1970s, after a Republican faithless elector, Mike Padden, voted for Ronald Reagan in 1976 even though Gerald Ford won the state election.
There was no penalty then. And both parties supported the state laws at issue before the Supreme Court, one from Colorado and the other from Washington.
The efforts didn't succeed and each elector was fined $1,000, prompting legal arguments about the constitutionality of restricting Electoral College votes. "One might think of this as fodder for a new season of "Veep", Kagan wrote.
Thirty-two states, as well as the District of Columbia prohibit Electoral College members to support a candidate contrary to popular vote. "That direction accords with the Constitution - as well as with the trust of a Nation that here, We the People rule", Justice Elena Kagan wrote on the court's ruling. But the justices had never before said whether it is constitutional to enforce those pledges. The majority was reading too much into the original and amended language about the Electoral College as giving states the right to pass such laws, he wrote.
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