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Supreme Court lets states keep ‘faithless elector’ laws

Justices reject challenges from electors who faced penalties for casting 2016 Electoral College votes for a different candidate than state's voters chose

The Supreme Court backed the power of states to implement the nation’s system for choosing a president, ruling Monday that states can enforce laws that require presidential electors to support the winner of the state’s popular vote.

The justices, in two unanimous opinions, rejected challenges to such laws in Colorado and Washington state from so-called ‘faithless electors’ in the 2016 election who faced penalties for casting their Electoral College votes for a different presidential candidate than the one who won the popular vote in their states.

Justice Elena Kagan, writing for the court, highlighted how nothing in the Constitution expressly prohibits states from taking away discretion from presidential electors.

Kagan wrote that states in the early 1900s took steps to reinforce the idea that those electors are “trusty transmitters” of election results. Washington’s law, which penalizes presidential electors who break their pledge to vote for the winner, is only another in the same vein.

“It reflects a tradition more than two centuries old,” Kagan wrote. “In that practice, electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.”

And the Supreme Court noted that although Congress has deferred to states when it comes to whether to tolerate a faithless vote, that “is no ground for rejecting a state decision to penalize one.”

The Washington case was brought by three Democratic 2016 presidential electors who faced fines for not casting electoral votes for Hillary Clinton and Tim Kaine, the Democratic nominees for president and vice president. The Colorado case focuses on an elector who cast his ballot for John Kasich instead of Clinton.

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Attorneys for those electors pressed their argument that the Constitution allows states to set requirements for who can become an elector, but gives those electors discretion on how to vote.

During oral arguments, the justices raised concerns about the potential for the Electoral College to turn into electoral chaos.

A political party’s designated presidential electors are required to pledge their votes to the winner of the popular election in 32 states and the District of Columbia, according to a brief filed in the case by those states.

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