If an Elector changes his vote he is depriving all those who selected him as their elector of their vote. It is a Constitutional issue.

Source: The Washington Free Beacon

The Supreme Court on Wednesday heard two cases asking whether members of the Electoral College are bound by laws requiring them to support the winner of the popular vote in their state.

Wednesday’s cases involve six electors who were fined or disqualified because they voted for candidates of their own choosing in 2016, instead of abiding by the result of the vote in their state. The justices seemed ready to say that laws punishing so-called faithless electors are constitutionally permissible. Thirty-two states and the District of Columbia have such laws.

Rogue electoral votes could be decisive to the November election if the winner commands a thin margin in the Electoral College. While a federal appeals court ruled the electors are free to vote as they please, the states say binding electors to the popular vote is essential for ensuring public faith in elections.

After President Donald Trump’s surprise 2016 victory, Democrats pressed presidential electors to abandon Trump for a compromise candidate like former secretary of state Colin Powell. Ten electors ultimately defected. Northwestern University law professor Robert Bennett cited those efforts in a legal brief supporting the states, writing that bids “to influence electors through lobbying and intimidation” have increased in recent election cycles.

“Where the popular vote is close and changing just a few votes would alter the outcome or throw it into the House of Representatives, the rational response of the losing political party … would be to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be,”

Justice Samuel Alito

Justice Brett Kavanaugh said Alito’s warning might be a good reason to invoke “the avoid chaos principle of judging, which suggests that if it’s a close call or a tiebreaker, that we shouldn’t facilitate or create chaos.”

Many of the justices seemed uncomfortable with giving the electors unbounded discretion. Justice Clarence Thomas wondered why a state couldn’t stop its elector from casting a meaningless or even absurd ballot.

“The elector, who had promised to vote for the winning candidate, could suddenly say ‘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.”

Justice Clarence Thomas

Yet the Court was also broadly eager to identify the limits on state power over members of the Electoral College. Lessig warned that making electors “minions” of each state would open the door to partisan manipulation.

“If you find the state has the power to regulate electoral votes, may the state forbid the elector from voting for a candidate who has not visited the state, who has not released his tax returns as bills in New Jersey and New York purport to do, or has not pledged to appoint justices who will uphold Roe? Open this door and there are an endless list of partisan opportunisms that will tempt the states.”

Laurence Lessig
Harvard Law School Professor

SCOTUS May Allow Action Against ‘Faithless’ Electors

Jethro