Washington — On the last day of oral arguments conducted over conference call, the Supreme Court considered a pair of cases Wednesday involving the Electoral College and whether states can require its presidential electors to cast their ballots for the candidate who wins the state’s popular vote.
The high heard arguments in a total of 10 cases over two weeks via teleconference due to the coronavirus pandemic, broadcasting the proceedings live for the first time. A decision from the justices in Wednesday’s cases — expected by the end of June — will come in the heart of the 2020 presidential campaign.
The Supreme Court agreed in December to hear the two legal battles involving so-called “faithless electors,” one from Washington state and another from Colorado.
The dispute from Washington, which was argued first, involves Peter Chiafalo, Levi Jennet Guerra and Esther Virginia John who were nominated to serve as presidential electors for the Washington Democratic Party during the 2016 presidential election.
But when the Electoral College convened, neither voted for Hillary Clinton, who won the state’s popular vote. Instead, all three cast their electoral ballots for former Secretary of State Colin Powell for president, and three different women senators for vice president.
Washington state law dictates that an elector who fails to vote for their party’s nominee faces a civil fine of up to $1,000. As a result, all three were fined $1,000 apiece. They challenged the penalties, arguing they were unconstitutional, but the Washington Supreme Court ruled against them.
In their petition to the Supreme Court, the electors said the case is of “exceptional importance,” as it comes to the court at a time “where the outcome could be election-dispositive and where the decision could be of monumental significance.”
“It is possible that a presidential election could turn on just a few disputed electoral votes cast in purported violation of state law,” they told the court. “If that happened, it is not clear whether the states, citizenry, or Congress will accept those votes as valid. The country would need to figure out how to resolve such a contest over electoral votes in the midst of a heated partisan political dispute. It is not entirely clear how that would play out — but there is a very real risk of substantial unrest, or worst, if that does happen.”
During Wednesday’s questioning, the justices invoked fears of bribery and chaos to suggest they think states can require presidential electors to back their states’ popular vote winner in the Electoral College. Justice Brett Kavanaugh said he would apply the “‘avoid chaos’ principle of judging.” If states can’t replace electors who vote for someone other than the popular vote winner, “it would lead to chaos,” Justice Samuel Alito said, “where the popular vote is close and changing just a few votes would alter the outcome.”
The case out of Colorado, meanwhile, involves three presidential electors, including one, Michael Baca, who attempted to cast his vote for former Ohio Governor John Kasich. He was replaced, however, with an elector who voted for Clinton, as she won the state’s popular vote.
The three electors challenged Colorado’s statute binding its electors to the outcome of the popular vote for president as unconstitutional. The 10th U.S. Circuit Court of Appeals ruled against the state and said Baca should not have been removed from his position as a presidential elector. Additionally, the appeals court said the Constitution suggests electors “are free to vote as they choose in the Electoral College.”
Like the electors from Washington, Colorado’s Department of State urged the Supreme Court to act swiftly in hearing the case, saying it should be decided “now, not in the heat of a close presidential election.”
“In the hectic litigation leading up to the Electoral College, a judicial decision can become hyper-partisan because the winners and losers from any court decision are known,” the agency said in a court filing. “By contrast, deciding this question now, before the voters cast their ballots and states pick their electors, allows this Court to address the principles raised in a more neutral environment.”
In the 2016 presidential election, 10 electors nationwide attempted to vote for candidates other than the one who claimed the state’s popular vote.
Thirty-two states and the District of Columbia require electors to vote for a pledged candidate, according to FairVote, a nonpartisan group that advocates for electoral reforms.
The Associated Press contributed to this report.