In Colorado’s “faithless electors” case, U.S. Supreme Court debates Electoral College’s freedom

For one hour Wednesday morning, the U.S. Supreme Court debated whether members of the Electoral College can be bound by the popular vote of their states or if they’re “free agents” who can vote for anyone short of Frodo Baggins.

The debate, via teleconference, pitted Colorado Attorney General Phil Weiser against Jason Harrow, an attorney for so-called “faithless electors” — members of the Electoral College from Colorado who, in 2016, did not vote for Hillary Clinton, the presidential candidate who won the most votes here. One of the electors was punished.

Weiser defended a state law that punishes faithless electors and urged justices to overturn a 10th U.S. Circuit Court of Appeals ruling that such punishments are unconstitutional. Harrow asked the Supreme Court to uphold the 10th Circuit ruling and argued that members of the Electoral College are free agents with almost limitless discretion to vote for whomever they choose. Several justices were skeptical.

“An elector who has promised to vote for the winning candidate could suddenly say, ‘You know, I’m going to vote for Frodo Baggins. I really like Frodo Baggins.’ And you’re saying, under your system, you can’t do anything about that,” said Justice Clarence Thomas, referring to a “Lord of the Rings” protagonist.

“Your honor, I think there is something to be done,” Harrow responded, “because that would be a vote for a non-person, no matter how big a fan many people are of Frodo Baggins.”

Chief Justice John Roberts said Harrow’s view of elector discretion “sounds limitless,” with the only exception being that an elector can’t “vote for a giraffe.” Harrow said states can oversee the appointment of electors, but not their votes.

“So, the elector can decide, I am going to vote — I am going to flip a coin and however it comes out, that’s how I’m going to vote?” Roberts asked.

“Yes, your honor,” Harrow told him, comparing electors to elected officials. “That’s the same discretion that U.S. senators have, representatives have.”

The U.S. Constitution grants states the power to appoint members of the Electoral College. The question before the Supreme Court is whether that same power also grants states the authority to punish electors who stray from the popular vote.

Both sides warned of electoral chaos if they lose the case. Harrow said there “could be a chaotic outcome” if electors cannot elect who they see fit, as they have throughout American history. Weiser said Harrow and faithless electors want to engage in a “treacherous experiment” and risk a constitutional crisis.

“My friends on the other side have failed to offer any viable theory on how to address the spectacle of a bribed elector, an elector who votes for Frodo Baggins, or one who would perpetrate a bait-and-switch on the people of the state,” the Democratic attorney general told justices.

The hypothetical scenario of bribed electors came up often during Wednesday’s arguments. Harrow, when asked whether an elector suspected of bribery would be allowed to cast a ballot, said yes, if the elector had not yet been convicted.

The Colorado case, known formally as Colorado Department of State v. Baca, stems from 2016, when Micheal Baca, a Colorado member of the Electoral College, attempted to vote for John Kasich, a Republican former governor of Ohio, rather than Clinton. Baca’s decision was part of a quixotic effort to lure Republican electors to a consensus choice and block Donald Trump from becoming president.

“Given the current system of presidential selection by an Electoral College, there must be times when electors — and only those electors — are best placed to act in the interest of country,” Harrow said Wednesday.

Because of the coronavirus pandemic, the attorneys and justices debated via teleconference and audio of the arguments was streamed online to the public.

The Supreme Court likely will issue an opinion in the Colorado case and another faithless electors case out of Washington by the end of June. Both sides have urged the court to give electors guidance before November’s presidential election.

“If something goes awry in this coming election or any other, the framers (of the Constitution) thought that electors could vote with discretion,” Harrow said.

Source: Read Full Article