The Supreme Court agreed Friday to resolve an issue that could tip the outcome of a very close presidential election and decide whether electors have a right to defy their state’s choice for president by casting a vote for the candidate of their choice.
The justices agreed to review a surprising decision from the U.S. 10th Circuit Court of Appeals last year that held that the electors established by the Constitution “have a right to make a choice” when they vote for president.
If the ruling stands, it could further transform the creaky electoral college system and inject a new element of suspense and surprise into presidential elections.
Under the little-understood electoral college system, when Americans cast their votes for president on election day, they are actually choosing a slate of electors who will, in turn, cast the state’s votes in January. Since the early 1800s, it has been understood that the chosen electors will cast their votes for the candidate who won the most votes in their state, making the January tally a mere formality.
But if electors have a “constitutional right” to pick someone else, the winner of a close presidential election could be in doubt for weeks after election day.
Electors in most states are required to take an oath to support the winning candidate, and many states have laws stating that so-called faithless electors will be removed and replaced if they fail to abide by their commitment.
Colorado Secretary of State Jena Griswold said the 10th Circuit Court’s decision “takes power from Colorado voters and sets a dangerous precedent.” She appealed to the high court, which voted to review the case, Colorado Department of State vs. Baca. The court will also review a similar case from Washington state, Chiafalo vs. Washington.
In most presidential elections, a few “faithless electors” seek to cast a protest vote, usually for a candidate who is not on the ballot. For the 2016 election, Micheal Baca was chosen as a Democratic elector in Colorado, but he chose to cast a vote for then-Ohio Gov. John Kasich, a Republican, even though Hillary Clinton won the majority of votes in Colorado. Colorado officials then removed him, discarded his vote and replaced him with an elector who cast her vote for Clinton.
Baca sued, alleging that his removal violated the Constitution, which says the “electors shall meet in their respective states and vote by ballot for president.” He lost before a federal judge but won a 2-1 ruling in the 10th Circuit Court. The majority said the use of the terms “elector, vote and ballot have a common theme,” indicating that “the electors, once appointed, are free to vote as they choose.”
Election experts said they worried the ruling, if left in place, could encourage or put pressure on wavering electors after November, if only a few electoral votes separate the top two candidates.
Griswold welcomed the court’s intervention. “Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to the voters’ choices and state law,” she said. “We hope the U.S. Supreme Court will protect the rights of the states to enforce their law and defend the rights of Americans to choose the U.S. president.”
Harvard Law professor Lawrence Lessig, who represented the dissident electors in Colorado and Washington, also welcomed the news. “We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections.”
Separately Friday, the court said it would decide whether the Trump administration could broadly exempt employers from providing contraceptives to their employees if they have religious or moral objections. This is the latest of many legal disputes over a provision in the Affordable Care Act that required employers to provide a full range of contraceptives as part of preventative care.
In 2014, the court’s conservatives sided with the Christian family that runs the Hobby Lobby chain of craft stores and said they had a religious freedom right to not provide contraceptives directly. But the court’s opinion said its insurers could step in to provide coverage.
The Trump administration proposed a broader exemption to the Obamacare provision in a regulation, but it was blocked by judges after state attorneys in California, Pennsylvania and New Jersey sued. The justices said Friday they will hear the administration’s appeal in Trump vs. Pennsylvania and a companion case called Little Sisters of the Poor vs. Pennsylvania.
Civil rights groups urged justices not to create a religious liberty exemption.
“Allowing employers and universities to use their religious beliefs to block employees’ and students’ birth control coverage isn’t religious liberty — it’s discrimination,” said Brigitte Amiri, deputy director at the ACLU Reproductive Freedom Project. “The Trump administration’s attempt to take away people’s insurance coverage for contraception is one of the administration’s many attacks on access to abortion and contraception, and we hope the Supreme Court will uphold the lower court’s ruling blocking this awful law.”
Mark Rienzi, a lawyer who represents the Little Sisters of the Poor, said it and other nonprofit religious charities should not be forced to comply with the contraceptive mandate.
“Why is Pennsylvania still trying to fight tired and unnecessary culture wars that were settled years ago? There are plenty of ways to provide people with contraceptives without forcing the Catholic nuns to participate,” he said. Rienzi is president of Becket Fund, a public interest law firm that focuses on religious liberties.
The cases — on the electoral college and the contraceptive rule — are likely to be argued in April and decided by late June.