Justices Fear 'Chaos' If Electoral College Delegates Have Free Rein

May 13, 2020
Originally published on May 13, 2020 2:52 pm

The U.S. Supreme Court seemed pulled in two directions Wednesday—between the original meaning of the Constitution, on the one hand, and chaos in the 2020 election on the other.

The election will take place amid a pandemic, at least a partial economic collapse, and potentially a Supreme Court ruling that could directly affect the election itself.

The issue before the court Wednesday was whether states may remove or fine Electoral College delegates who do not vote for the presidential candidate they were pledged to support. The states say they have the power to do that. A group of 2016 electors say they don't.

As envisioned by the framers of the Constitution, members of the Electoral College were to exercise independent judgement in casting their ballots for president and vice president. But by 1796, after the emergence of political parties, the selected electors were pledged to cast their ballots for the popular vote winner in their states.

In 2016, Colorado removed several delegates who tried to vote for someone other than Hillary Clinton, the candidate they were pledged to support. In Washington state, electors who tried the same thing were fined.

The "faithless electors" challenged the actions against them in court, and if they prevail, the Electoral College would be largely un-tethered from the way it has operated for over 200 years.

At the Supreme Court Wednesday, the justices seemed conflicted between the original meaning of the Constitution, which does not explicitly permit states to bind electors to a pledged candidate, and the historical practice of binding delegates that emerged soon after the Constitution's ratification.

Harvard Law professor Lawrence Lessig, representing the electors, told the court that the founders believed that states can require electors to make a pledge, but that pledge is not enforceable by the states.

Justice Clarence Thomas challenged Lessig, asking, "Can the state remove someone who openly solicits payments for his or her vote?"

Lessig replied that the state can regulate corruption, but it can't remove electors unless they have been convicted of a bribe or another corrupt act. The justices seemed particularly disturbed by this assertion, asking all four attorneys arguing the case to weigh in on the possibility of states being powerless to remove electors who accept bribes.

Another major theme of the arguments: 'chaos.'

Justice Samuel Alito noted that in the case of a close popular vote there could be "a massive campaign to try to influence electors" to switch their votes, tipping the election into the House of Representatives and creating "a long period of uncertainty about who the next president was going to be."

"Do you deny that that is a good possibility if your argument prevails?" Alito asked.

"We deny it's a good possibility. We don't deny it's a possibility," replied Lessig.

Justice Brett Kavanaugh picked up on that answer referring to what "I call the 'avoid chaos principle of judging,' which suggests that if it's a close call or tie breaker, that we shouldn't facilitate or create chaos."

Lessig acknowledged the risk of chaos, but reiterated that he believes the risk is small. He added that there is "risk on both sides."

Next up was Washington Solicitor General Noah Purcell, who defended his state's law binding electors to vote for the candidate they have pledged to support. He argued that because the Constitution gives state legislatures the authority to determine the manner by which their electors are selected, the states may also enforce the terms of those appointments.

Purcell labelled "absurd" Lessig's assertion that a designated elector couldn't be removed for bribery unless convicted

"It's completely contrary to the historical record, and it leads to a dangerous consequence," including an incentive "for those who want to meddle in our presidential elections, whether it be a foreign power or just a wealthy individual, to attempt to bribe or blackmail elector," he said.

Purcell contended that nothing in the Constitution prevents states from removing an elector. Rather, he argued, the power given to states to appoint electors implicitly includes the power to remove them.

Purcell warned the justices that ruling in favor of the so-called "faithless electors" could unleash "chaos" and subvert the will of voters: "Every four years, over 100 million Americans participate in our country's presidential election process," he said, but under the other side's theory, "all that matters is who the electors prefer."

Colorado Attorney General Phillip Weiser agreed, prompting Justice Ruth Bader Ginsburg to ask how a ruling against the states could "actually alter our democratic processes ... How much difference does it make?"

Weiser responded that "the chaos that could result ... could occasion a constitutional crisis."

Jason Harrow, representing Colorado's removed electors, countered that the plain meaning of the Constitution's text, and the original intent of the founders, is that electors should be free to exercise their discretion when casting their Electoral College votes. If there are flaws with the design of the Electoral College, he said, the only way to fix the problem is through a constitutional amendment.

Harrow also maintained that the state's position is too "rigid" to handle unanticipated circumstances. If electors are bound to their pledge, they may be unable to adapt if, for instance, the winning presidential candidate dies.

Chief Justice John Roberts pushed back, saying, "I'm not sure your position has any limits either. What are the limits to your position?"

"None, Harrow replied , except that the elector has to vote for a person.

"Not a giraffe?, shot back Roberts. adding, "Of course they have to vote for a person."

Moments later, Justice Thomas piled on, suggesting that under Harrow's view, there is nothing to prevent an elector from casting his vote for Frodo Baggins.

An exasperated Justice Alito was not amused. "We have to interpret the Constitution to mean what it means, regardless of the consequences," he said. "But we are told by experts on elections that the consequences would be potentially chaotic."

However the high court rules, the cases are likely to focus national attention on the shortcomings and uncertainties of the Electoral College at a time when over two decades two presidential candidates have lost the popular vote but won the presidential election because of the Electoral College.

Monday's cases were the second in two days that could have consequences for the 2020 presidential election. On Tuesday, the justices heard arguments in a pair of cases involving President Trump's financial records.

Wednesday's arguments were the last of 10 cases that had been originally scheduled for argument March or April but because of the Covid-19 pandemic had to be rescheduled. The cases heard over the last two weeks were, for the most part, the most urgent facing the court. Other important cases were put over for argument next term.

The cases argued in May most likely will not be decided until July.

Arguments were audio-livestreamed Wednesday and the justices participated by telephone conference because of social-distancing measures adopted amid the coronavirus outbreak. Here's a rundown of the cases heard by phone.

Christina Peck and Emmett Witkovsky-Eldred contributed to this report

Copyright 2020 NPR. To see more, visit https://www.npr.org.

AILSA CHANG, HOST:

The 2020 election will take place during a pandemic, at least a partial economic collapse, and now the possibility of a Supreme Court ruling that could directly affect the election itself. Today the justices heard arguments in a case that could untether the Electoral College from the way it has operated for over 200 years. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The Electoral College enshrined in the Constitution envisioned electors who would exercise independent judgment in casting their ballots for president and vice president. But as soon as political parties began to emerge, that notion quickly evaporated. And by 1796, the selected electors were pledged to cast their ballots for the popular vote winner in their states. The question before the court today - can those delegates who violate that pledge be removed or fined? Most states have such laws. In 2016, Colorado removed several delegates who tried to vote for someone other than the candidate they were pledged to support - Hillary Clinton. And in Washington state, delegates who did the same thing were fined.

Today the Supreme Court seemed tugged between the original meaning of the Constitution and the practice followed by the states over the last two centuries. Harvard Law professor Lawrence Lessig - a longtime critic of the Electoral College - told the court that under the system envisioned by the founders, the electors have discretion to vote for whomever they choose. Electors can make a pledge, but that pledge is not enforceable by the state. Justice Clarence Thomas immediately challenged Lessig.

(SOUNDBITE OF ARCHIVED RECORDING)

CLARENCE THOMAS: Can the state remove someone who openly solicits payments for his or her vote?

TOTENBERG: Lessig replied that the state can regulate corruption, but it can't remove an elector unless a bribe or other corrupt act is proved. Justice Samuel Alito posed another question.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: Those who disagree with your argument say that it would lead to chaos - that where the popular vote is close and changing just a few votes would alter the outcome or throw it into the House of Representatives, there would be - the rational response of the losing political party would be 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. Do you know deny that that is a good possibility if your argument prevails?

LAWRENCE LESSIG: We do deny it's a good possibility. We don't deny it's a possibility.

TOTENBERG: Justice Kavanaugh picked up on that answer, referring to...

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: What I might call the avoid chaos principle of judging, which suggests that, if it's a close call or tie-breaker, that we shouldn't facilitate or create chaos.

TOTENBERG: Lawyer Lessig acknowledged the risk of chaos but said he thinks it would be small. Next up was Washington Solicitor General Noah Purcell, who argued that there's nothing in the Constitution that prevents the states from removing these so-called faithless electors. Purcell labeled absurd Lessig's assertion that a designated elector couldn't be removed for bribery until convicted in a court of law.

(SOUNDBITE OF ARCHIVED RECORDING)

NOAH PURCELL: It's completely contrary to the historical record and it leads to a dangerous consequence, Your Honor, that there's a huge incentive, under the other side's view, for those who want to meddle in our presidential elections - whether it be a foreign power or just a wealthy individual - to attempt to bribe or blackmail electors.

TOTENBERG: Colorado Attorney General Philip Weiser agreed. Justice Ruth Bader Ginsburg asked him this question.

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: How would a ruling against you actually alter our democratic processes?

PHILLIP WEISER: Your Honor, the chaos that could result could occasion a constitutional crisis.

TOTENBERG: Lawyer Jason Harrow, representing the electors who were removed in Colorado, countered that if there are problems with the Electoral College, the only way to fix those problems is by constitutional amendment. And he gave examples of things that might go awry if electors are bound to their pledges. For instance, who would they vote for if the winning presidential candidate died? Chief Justice John Roberts pressed Harrow to see if there are any limits on who the electors may vote for. None, replied Harrow, except that the elector has to vote for a person, prompting this reaction from the chief justice.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: Not a giraffe? I mean, of course they have to vote for a person.

TOTENBERG: Moments later, Justice Thomas suggested that perhaps there's nothing to prevent an elector from casting his vote for Frodo Baggins. An exasperated Justice Alito found no humor in all of this - we have to interpret the Constitution to mean what it means, regardless of the consequences, he said, but we're told by experts the result could be chaos. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.