The Corner

Law & the Courts

Hurrah for the Supreme Court’s Rebuke to Faithless Electors

Hurrah for the Supreme Court’s 9–0 decision upholding state penalties against “faithless electors” in the Electoral College.

Faithless electors could be shrugged off as oddball gestures of political defiance back when it was a rare gadfly voting for “John Edwards for president, John Kerry for vice president” or some other similar inconsequential act — footnotes to history. But one of these cycles we could see another close finish, akin to the 2000 election’s 271 to 266 result. If a candidate won more than 270 electoral votes on Election Night, but then ended up with fewer than 270 because of faithless electors — or flipped to the candidate who finished a close second! — the country would be in a genuine political crisis.

Perhaps in past cycles, a stronger sense of duty and honor prompted electors to keep their word, no matter how they personally felt about the winning candidate. In today’s more narcissistic culture, perhaps some addle-minded electors see changing their vote as a step to fame. The 2016 election saw seven faithless electors — costing Hillary Clinton five she should have won and Donald Trump two. As I wrote back in 2016:

Our elections run on trust. These faithless electors have publicly pledged to support a nominee and in some cases signed written pledges. Once the election results were in and it was too late for them to be removed from their positions as electors, they announced that they intended to vote for someone different. If this phenomenon becomes more common every four years, people will justifiably ask whether their vote matters at all.

The existing penalties may not be sufficient deterrent against faithless elections. Or perhaps this year all the electors will take their duties seriously, and the trend of faithless electors will wane. But the unanimous decision probably increases the odds that electors will recognize that no message justifies breaking their promise. Justice Elena Kagan wrote in her majority opinion that states may instruct, “electors that they have no ground for reversing the vote of millions of its citizens . . . That direction accords with the Constitution — as well as with the trust of a Nation that here, We the People rule.”

How often do we get to say, “Amen, Justice Kagan”?

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