On July 6, 2020, the U.S. Supreme Court unanimously ruled that states have the power to require presidential electors to vote for their party’s candidate for president.
More specifically, the decision allows states to pass laws requiring presidential electors to cast their votes in a manner that faithfully reflects their commitment to vote for the person they promised to choose when they were nominated as an elector.
Supporters of a popular vote for president should understand two important and positive things about the court’s decision. First, the ruling underscores the fact that Article 2, Section 1 of the Constitution accords states broad power over their electors. Justice Kagan wrote in the opinion for eight justices:
“Article II, section 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. As [the Constitution says], each State may appoint electors ‘in such Manner as the Legislature thereof may direct.’ … This Court has described that clause as ‘conveying the broadest power of determination’ over who becomes an elector.”
The opinion goes on:
“The Constitution is barebones about electors. Article II includes only the instruction to each State to appoint, in whatever way it likes, [its presidential electors]. The Twelfth Amendment then tells electors to meet in their States, to vote for President and Vice President separately, and to transmit lists of all their votes to the President of the United States Senate for counting. … That is all.”
Justice Thomas reached the same conclusion as the other justices, but he (and Justice Gorsuch) said that the 10th Amendment provided a basis for the decision. Thomas wrote that the “powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power. Thus, to invalidate a state law, there must be ‘something in the Federal Constitution that deprives the [States of] the power to enact such a measure.’”
This clear reaffirmation of the power of states to appoint their electoral votes “in whatever way it likes” supports the National Popular Vote Interstate Compact and Article II, section 1 upon which National Popular Vote is based. States have broad authority over their electors, and nothing in this case would suggest this plenary power would suddenly be limited if the states’ electors were awarded to the National Popular Vote winner.
And second, the Court’s decision reinforces the validity of the National Popular Vote Interstate Compact. Under National Popular Vote, states that combine for at least 270 electoral votes agree to award their electors to the presidential candidate who wins the most individual votes across the nation. (Fifteen states and the District of Columbia, totaling 196 electoral votes, have already passed the measure.)
In the 18 states currently without faithless elector laws, the National Popular Vote Interstate Compact would operate in a manner identical to the system that they have been using for over 200 years. In these states (which currently use the state-by-state winner-take-all method of awarding electoral votes), the presidential electors are chosen by the political party whose presidential candidate receives the most popular votes inside the state, and there are no additional requirements placed upon the elector.
The National Popular Vote Interstate Compact would operate in the same way, except that the presidential electors would be persons chosen by the political party whose presidential candidate receives the most popular votes across all 50 states and the District of Columbia.
Interestingly enough, after 23,529 electoral votes in 58 presidential elections between 1789 and 2016, the vote of Samuel Miles in 1796 was the only case where an electoral vote was cast for president in an unfaithful way by an elector who may have thought his vote could affect the outcome. (See section 2.12 of the book Every Vote Equal.) In their decision, the justices also noted that “… faithless voters have never come close to affecting an outcome.”
However, during the same period (1789 to 2016), there have been a number of “grandstanding” presidential electors—that is, electors who cast a deviant vote for president knowing that their vote would not affect the outcome in the Electoral College.
Prior to 2016, there had never been more than one grandstanding presidential elector in any given election. Having seven faithless electors in one year (2016) was unusual. All of the faithless electors in 2016 were well aware, at the time they voted, that their vote would not affect the outcome in the Electoral College because everyone knew that Donald Trump had won 36 more electoral votes than required for election.
Given the amount of publicity received by the grandstanding faithless electors in 2016, each political party can be expected to be extremely careful in 2020 about vetting the people they nominate for the position of presidential elector. If the political parties do their job carefully and well, faithless electors cannot have any effect on the outcome of a presidential election—under either the current system or the National Popular Vote Interstate Compact.