The Independent View: States Ask Supreme Court to Decide Faithless Presidential Electors Cash

Allow us to Punish Faithless Electors, nearly Half the States ask the Supreme Court.

There are now 23 States asking the Supreme Court to Answer a Basic Question about the Process of Electing the President.

Can States Bind a Member of the Electoral College to Vote for the State's Popular Vote winner?

A Original Group of 22 States, on Wednesday, asked the Court to take up a Case involving a so-called Faithless Elector in Colorado, who was Dismissed and Replaced in 2016 after Refusing to Vote for Hilary Clinton even though she Won the State's Popular Vote.

The Elector Challenged his Dismissal in a Lawsuit, which a Lower Court Allowed to Move Forward.

The Brief from Colorado's Allies argues the Court should Reverse that Decision, effectively giving a Green Light for States to Enforce Laws that Require an Elector to Cast their Votes for the Candidate who Carries their State.

Thirty-Two States have such Laws.

Without Guidance from the Court, the Colorado Case "creates considerable uncertainty regarding the authority of states when appointing presidential electors and the validity of laws binding electors to follow the will of the electorate," said the Brief from the 22 State Attorneys General.

The Justices are also considering a Case Centered on Three 2016 Electors who got Punished for their Faithlessness by the State of Washington and want the Court to Rule that such Binding Laws are Unconstitutional.

The Constitution’s Text says Nothing about how Electors should Vote. It says Two relevant things:

(a) “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …”

(b) “The electors shall meet in their respective states, and vote by ballot for President and Vice President…”

That Language is Consistent with States, if they choose, Selecting Electors based on the Electors’ Advance Pledge to Vote for a Particular Candidate. There is No Textual Duty to Exercise Independent Judgment at the College Vote, but the Constitution doesn't indicate How they will Vote.

Hamilton’s Federalist 68, in which Hamilton Appeared to Assume that Electors would Exercise Independent Judgment and Not be Pledged in Advance. But that Only Reflects what Hamilton thought would happen. It does Not purport to be an Assessment of what the Constitution’s Text means.

Modern Originalism may look to the Framers’ Expectations to Assist in Finding the Meaning of Ambiguous Text, but the Text, not the Expectations, is the Law. In this Situation, the Text is Clear in giving Discretion to the State Selection Process, and it Appears that Hamilton Erred in Guessing how it would be Implemented.