The Supreme Court has agreed to hear two cases involving the electoral college, the antiquated system that twice in recent history has installed the loser of the popular vote for president in the White House and could have that perverse result again in 2020. Alas, it’s beyond the power of the court to do away with the electoral vote system, but the justices can prevent it from becoming even less democratic.
Although U.S. citizens cast ballots for president on election day in November, they are actually choosing people to serve as electors — usually party loyalists — who convene in state capitals in December to formally choose a chief executive. Laws in 29 states and the District of Columbia bind those electors to reflect their citizens’ votes. (In 48 states, all of the electoral votes go to the winner of the statewide popular vote, and D.C. also allocates its electoral vote on a winner-take-all basis. Maine and Nebraska allocate some electoral votes to candidates who finish first in congressional districts.)
But in 2016, as in previous elections, some electors decided to support people other than the candidate who carried the popular vote in their states. The two cases the court will review — one from Washington state, the other from Colorado — raise the question of whether states can penalize or remove such “faithless electors.” The court should answer yes.
In the Washington state case, three electors — Peter Chiaflo, Levi Guerra and Esther John — voted not for Hillary Clinton, who carried the state, but former Secretary of State Colin Powell, who wasn’t even on the ballot. They were fined $1,000 each for violating a state law binding electors to vote for the popular-vote winner. The Supreme Court of Washington upheld both the law and the fines.
In Colorado, where Clinton also won the popular vote, Micheal Baca was removed as an elector after he tried to vote for then-Gov. John Kasich of Ohio, who had lost to Donald Trump in the Republican primary. Baca appealed to the U.S. 10th Circuit Court of Appeals, which ruled in his favor, holding that “the Constitution provides no express role for the states after appointment of its presidential electors.” The court also said that the definitions of the words “elector,” “vote” and “ballot” — all occurring in the Constitution — imply “the right to make a choice or voice an individual opinion.”
This is a close question, but the court should uphold the laws against faithless electors, for two reasons.
First, the overriding goal of the framers of the Constitution was to give states authority over the selection of electors. While it’s true that early in American history, electors were chosen by state legislatures, states long ago decided that the better approach was to award electoral votes on the basis of the popular vote. The court should respect that decision by allowing states to penalize or replace electors who disregard their instructions.
Second, ensuring that voters have the final say in the selection of electors is consistent with a trend toward participatory democracy that is also reflected in changes in the Constitution, especially the 17th Amendment ratified in 1913. That amendment took the choice of U.S. senators away from state legislatures and provided for popular election for the Senate.
Of course, the ultimate culmination of that democratizing trend would be a constitutional amendment to abolish the electoral college altogether and provide for popular election of the president. But even if approved by a two-thirds vote in both houses of Congress, such an amendment would require ratification by three-fourths of the states. (Amendments can also be proposed by a constitutional convention, but ratification would still require approval by three-fourths of the states.)
Because amending the Constitution is such a daunting proposition, reformers have proposed an alternative called the National Popular Vote Interstate Compact. Under that arrangement, participating states pledge to award all their electoral votes to the candidate who wins the national popular vote. The compact, however, doesn’t go into effect until it includes enough states to constitute a majority of 270 electoral votes. So far it has been endorsed by 15 states (including California) and the District of Columbia, representing 196 electoral votes.
Enforcement of the compact would mean, effectively, that the winner of the popular vote would become president. That would of course be preferable to the current system, but its prospects are also uncertain. In any case, the surest way to make the presidential election a true vote of the people would be to amend the Constitution.
By all means the Supreme Court should rule that states can require electors to honor the popular vote in those states. But even after such a ruling, it will be possible for a candidate who finishes second in the national popular vote to win the presidency, as George W. Bush did in 2000 and President Trump did in 2016.
The court can’t prevent such a disservice to democracy. It’s up to the American people to make it clear to their elected representatives that the electoral college is an undemocratic anachronism.