Editorial: The Supreme Court bolsters democracy by letting states curb ‘faithless electors’
It’s unfortunately beyond the power of the Supreme Court to abolish the electoral college, a hopelessly antiquated and unfair way to choose the president. But in a unanimous ruling Monday, the court at least prevented the system from becoming even less democratic.
Acting on cases from Washington and Colorado, the justices held that states may punish — and even remove — electors who don’t support the presidential candidate who finished first in the popular vote there.
In Colorado, which Hillary Clinton carried in 2016, an elector was replaced when he said he intended to vote for Gov. John Kasich (R-Ohio) instead. In Washington, where Clinton also won the popular vote, three electors were fined for voting for former Secretary of State Colin Powell despite having pledged to support Clinton.
Writing for the court, Justice Elena Kagan said that “nothing in the Constitution expressly prohibits states from taking away presidential electors’ voting discretion.” Equally important, she noted the long practice of choosing electors based on the state’s popular vote for president, rather than having state lawmakers pick them.
The framers of the Constitution, she conceded, left for the future the question of “how independent from — or how faithful to — party and popular preferences the electors’ votes should be.” But, she added, “the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people’s decisions.”
Today 48 states award all of their electoral votes to the winner of the statewide popular vote. (Maine and Nebraska award two electors to the winner of the statewide vote and one to the winner of each congressional district.) Many voters likely don’t realize that they are actually choosing electors who will gather in their states in December to cast the ballots that decide the race.
Kagan also emphasized that states have taken steps to bind electors to the voters’ will. Thirty-two states impose such obligations, and 15 of those states impose some sort of sanction on faithless electors, with most of them providing for the replacement of renegade electors.
Monday’s decision does justice to the long historical practice of choosing electors through popular elections. But it also is true to the framers’ overriding purpose: to entrust the selection of electors to the states, which have decided to honor the voters’ wishes. To further deter faithless electors, states that don’t currently have laws calling for defiant electors to be replaced — California among them — should swiftly enact them.
The timing of the decision is also important. It comes in a presidential election year already clouded by the possibility of an inconclusive or contested outcome that the unprincipled incumbent might try to exploit. The court has minimized the possibility of at least one sort of disruption.
Still, welcome as Monday’s ruling is, it doesn’t alter the fact that the electoral college is intrinsically prone to undemocratic outcomes. Two of the last three presidents — George W. Bush and Donald Trump — secured an electoral college majority without prevailing in the popular vote. Such a discrepancy between the popular and electoral result remains a danger even if electors faithfully reflect the outcome of a state’s popular vote.
That is unacceptable in a democratic society. Short of amending the Constitution to abolish the electoral college, the next best thing is for more states to join the National Popular Vote Interstate Compact. Under that arrangement, participating states pledge to award their electoral votes to the candidate who wins the national popular vote. (The compact wouldn’t go into effect until it included enough states to constitute a majority of 270 electoral votes.)
As the court noted, state election laws evolved to reinforce the notion that “a state’s electors would vote the same way as its citizens.” But the ultimate evolutionary achievement would, and must, be the abolition of the electoral college.
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