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Supreme Court Rules States Can Remove and Punish ‘Faithless Electors’

A polling station in Brooklyn, New York, November 4, 2014 (Brendan McDermid/Reuters)

The Supreme Court ruled Monday that states may remove presidential electors who fail to vote for the candidate who wins the state’s popular vote.

The justices voted unanimously that states may require so-called faithless electors to vote for the presidential candidate for whom they have pledged to vote and if they fail to do so, states are permitted to remove or fine them.

“Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does,” Justice Elena Kagan wrote for the majority.

“All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol,” Kagan continued. “Those sparse instructions took no position on how independent from — or how faithful to — party and popular preferences the electors’ votes should be. On that score, the Constitution left much to the future.”

During the 2016 presidential election, a record seven of the total 538 electors cast votes for candidates other than the one who won their state’s popular vote, and three electors tried to do so. Three Democratic electors from Washington state voted for former secretary of state Colin Powell over Hillary Clinton and were fined $1,000 by the state. The three electors argued that the state’s attempt to control their vote was unconstitutional. Separately, a Democratic Colorado elector challenged his removal after he cast a vote for former Ohio governor John Kasich, a Republican, rather than for Clinton. The Colorado elector won in an appeals court, but that decision was overturned by the Supreme Court.

“Today, the United States Supreme Court unanimously reaffirmed the fundamental principle that the vote of the people should matter in choosing the President,” Washington State attorney general Bob Ferguson, a Democrat, said in a statement Monday on the decision. “If we had not been successful, many observers, including several justices, noted the upcoming elections could have been thrown into ‘chaos.’”

The Supreme Court’s decision comes four months before the 2020 presidential election, which projections suggest could be a closer contest than the 2016 race.

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