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In just the past two decades, two presidents have been elected without winning the popular vote, leaving many Americans questioning the virtue of the Electoral College.
And if you’re unhappy with the current system for electing presidents, you should be wary of a recent decision from the U.S. Court of Appeals for the Tenth Circuit and the possibility that it could be upheld by the Supreme Court.
The Tenth Circuit ruled in Baca v. Colorado Department of State that a presidential elector, once elected in a given state, is free under the Constitution to cast their vote for anyone. They can do so regardless of how the state voted and regardless of whether the elector pledged to support the state winner. Essentially, under this ruling, electors could pledge to support the presidential candidate who wins the state, but then turn around and vote for someone else. This issue may well be one the Supreme Court will address this term, with a decision coming in June 2020, in time to affect the 2020 presidential election.
This “faithless elector” problem is not a new one. A surprising number of electoral votes have been cast over the years for people who did not carry the state on Election Day. Indeed, in 2016 alone, electoral votes were cast for Colin Powell, John Kasich, Ron Paul, Bernie Sanders and Faith Spotted Eagle. But these votes have not, of course, changed the outcome of the election – and it has always been unclear whether such votes, if cast in violation of state law, are legal.
Right now, there’s still legal uncertainty on the question of faithless electors, given that the Tenth Circuit ruled that electors can vote for whoever they please, while the Washington State Supreme Court ruled last spring that elector pledges can be enforced by states using their criminal law. It is the latter case that will be appealed to the Supreme Court first. But the conflict with the Tenth Circuit will be front and center as the reason why the high court needs to act.
Hopefully, the justices will hold that the Tenth Circuit got it wrong. If a Supreme Court ruling affirmed electors’ ability to ignore electoral outcomes, imagine what might occur if, in November 2020, President Trump and his Democratic opponent find themselves only a couple electoral votes apart on election night. It’s easy to imagine lobbying efforts or threats aimed at electors, as well as national media campaigns or street demonstrations in front of an elector’s house. All it would take is a handful of electors changing their votes – to the losing candidate or maybe just to a third party – to change the outcome entirely or throw the election into the House of Representatives.
A President elected that way would never be accepted by many Americans. It’s bad enough to see a candidate elected while losing the popular vote by three million votes, as occurred in 2016. To see a candidate win despite losing both the popular vote and the Electoral College as calculated on Election Night would be a nightmare scenario for the country.
The Tenth Circuit’s conclusion that electors are free agents, authorized to vote how they please, is based on the conclusion that the drafters of the Constitution in 1787 viewed the Electoral College as a kind of deliberative body, with members who would exercise their judgment about who would be the best president. In the early days of the republic, many states did not even conduct presidential elections, but rather legislatures selected the electors, who may or may not have pledged to vote a certain way. Having found that electors originally exercised some discretion, the court of appeals concluded that this original intent must carry the day in our present circumstances.
But that kind of wooden originalism ignores the changes in our constitutional system that have occurred since the Constitution’s ratification. We have now had more than two centuries during which voters in all the states have had a direct voice in presidential elections. Constitutional amendments have extended the franchise to persons of color, to women and to 18 year olds. None of these voters pay the slightest attention to who has been designated to serve as the electors for their favored candidate. The current assumption is that their casting of electoral votes is purely a formality, and given current realities, states should require electors to vote for the statewide vote winner. It is intolerable to risk the disaster that would befall the country if a faithless elector or two changed the outcome of a presidential election.
Paul M. Smith is the vice president for litigation & strategy at the Campaign Legal Center and a professor from practice at Georgetown Law School. He has argued 21 cases in the U.S. Supreme Court, including a number of landmark cases involving voting rights and redistricting.
