Supreme Court: States Can Punish ‘Faithless Electors’; Unanimous Decision

WASHINGTON, DC - JANUARY 28: U.S. Supreme Court Chief Justice John Roberts (L) stands with fellow Justices Anthony Kennedy (2nd from L), Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan (R) prior to President Barack Obama's State of the Union speech on Capitol Hill on January 28, 2014 in Washington, …
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The U.S. Supreme Court ruled unanimously Monday that states may punish “faithless electors” — those members of the Electoral College who refuse to cast their ballots for the candidate whom the majority of voters in the state have chosen.

As Breitbart News recounted in May, the issue arose in earnest after the 2016 election, when opponents of President-elect Donald Trump attempted to convince enough electors to change sides or cast their ballots for other candidates to prevent Trump from actually taking office:

Chiafalo v. Washington … [is] a case involving three presidential electors in the State of Washington who were fined $1,000 after casting their Electoral College votes for Colin Powell rather than Hillary Clinton.

The electors challenged their fine and were represented by Harvard Law School professor Lawrence Lessig — who ran for president himself in 2016, and tried to recruit electors to defect rather than voting for Donald Trump after the 2016 vote.

Lessig agreed that the states can ask electors to pledge to vote for a certain candidate, but cannot fine them for doing so, arguing that presidential elections are a federal function.

The arguments on both sides took an originalist form, as the two sides argued about the original intent of the Framers in setting up the Electoral College.

Justice Elena Kagan, writing for the Court, concluded:

Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elec- tor for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.

Justice Clarence Thomas issued a concurring opinion in which he said the basis of the Court’s decision should not have been Article II, but the Tenth Amendment, which reserves all powers and right to the states not expressly given to the federal government — including the power to patrol electors.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.


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