Several justices appeared concerned Wednesday about the chaos that could ensue if presidential electors could go rogue at the Electoral College as the Supreme Court weighed challenges to state laws requiring the electors to cast their ballots for the candidate that won the state’s majority vote instead of their personal preference.
One of the cases came after Washington state’s Supreme Court upheld fines against three 2016 presidential electors who violated state law by not casting their votes for Hillary Clinton and Tim Kaine, the Democratic ticket that won the popular vote in the state.
The electors challenged Washington’s law as a violation of the Constitution, noting the 10th U.S. Circuit Court of Appeals ruled in a similar case out of Colorado that individuals “are free to vote as they choose” in the Electoral College.
The Colorado case also came before the high court Wednesday. The challenges were the court’s final oral arguments for the term and were rescheduled for teleconference after being delayed last month due to the COVID-19 pandemic.
But justices from both the conservative and liberal wings of the court appeared skeptical about siding with the faithless electors.
“It is somewhat hard to understand the concept of something — I have pledged, bound to do, I have made a promise to do something — that, that promise is unenforceable,” said Justice Ruth Bader Ginsburg, a Clinton-appointee.
Justice Brett M. Kavanaugh, a Trump-appointee, echoed questioning by Justice Samuel A. Alito, a Bush appointee, about what would happen in states where the election was close if a number of faithless electors refused to vote for the candidate picked by the will of the people.
“Judges are going to worry about chaos,” Justice Kavanaugh said.
Lawrence Lessig, the attorney for the electors challenging Washington’s law, said political pledges and promises that electors make to vote a certain way are simply considered a moral obligation.
He noted no state until 2016 had actually imposed a fine or removed an elector.
“A pledge is always … a moral obligation,” Mr. Lessig told the court.
He likened the presidential electors to members of Congress who may identify with a political party, but are protected by the Speech and Debate Clause to vote on matters based on conscience.
But Philip Weiser, Colorado’s attorney general, which defended his state’s law requiring electors to cast their votes for the presidential and vice-presidential candidates that won the popular vote in his state, said a constitutional crisis could result if the court were to uphold the 10th Circuit’s ruling for the faithless electors.
“The Constitution gave the states authority over elections,” Mr. Weiser said.
Noah Purcell, Washington’s solicitor general, who defended his state’s law noted other conditions have also been imposed on electors such as residency requirements.
Nearly 30 states legally require their presidential electors to vote for the president and vice president picked by the voters.
The justices are expected to issue a decision in the cases by the end of June, ahead of the 2020 presidential election in November.
