What's At Stake As Colorado Argues Faithless Electors Case Before The US Supreme Court | KUNC

What's At Stake As Colorado Argues Faithless Electors Case Before The US Supreme Court

May 12, 2020

On Wednesday, the U.S. Supreme Court will hear oral arguments – by telephone – in the case Colorado v. Baca. Events leading to the lawsuit started in Colorado with the 2016 presidential election. The case examines the rights of so-called “faithless electors;” these are members of the electoral college who don’t vote for the candidate for whom they pledged to vote.

Keith Whittington, professor of politics at Princeton University, joined KUNC’s Colorado Edition to describe the case, and its potential impacts.


  Interview Highlights

These interview highlights have been lightly edited for length and clarity.

Erin O’Toole: Before we get to what happened in 2016, let’s start with the basics. What are faithless electors, and what role have they played in elections past?

Keith Whittington: Ever since the beginning of American history, presidential electors have pledged themselves to vote for a particular candidate. Occasionally, presidential electors will break that pledge, and vote for somebody else, instead of the person they said beforehand they were going to vote for. And we call those faithless electors.

They’ve been common, they happen. Over the course of American history there hasn’t been a ton of them, they don’t have dramatic consequences normally, but they have been part of our practice.

Well let’s take a look then at what happened in the 2016 election here in Colorado. And I think we need a refresher, that was a couple years ago.

In 2016 a movement arose, primarily among some Democratic presidential electors, to encourage presidential electors to break their pledges and vote for somebody else, instead of the person that they were initially pledged to. And obviously the goal was initially to persuade some of the Republican presidential electors that were pledged to support President Donald Trump to break their pledges and vote for somebody else.

This was very unusual, to have a lobbying campaign beforehand, trying to persuade presidential electors to break their pledges. That then ran afoul of some state laws that are designed to discourage presidential electors from breaking their pledges. And that was true in the state of Colorado, also true in the state of Washington, as well as a handful of other states. But it’s Washington and Colorado that have given rise to this litigation.

Can you talk a little bit about what happened after 2016?

In the case of Colorado, the one presidential elector in particular - Baca, who is the named litigant in this suit - was pledged to support Hilary Clinton. But, he announced that he was no longer going to support Hilary Clinton, that he was going to cast his ballot for someone else. So Baca wanted to be a faithless elector, but was not able to be a faithless elector because he was removed from his office before he was able to cast a ballot.

So one question before the court is, does the state have the authority to remove a presidential elector, because they don’t like how they think they’re going to vote, after the elector has been chosen for that position.

Walk us briefly through the arguments on both sides.

The states argue that presidential electors have long understood that they were supposed to be pledged to a particular candidate. Of course we don’t list the names of the presidential electors themselves, we usually list only the presidential candidates. So voters don’t even know who the presidential elector candidates are when they’re choosing them. All of which the state would emphasize suggests that presidential electors have no real agency in the process, are not supposed to be understood to have any discretion as the institution has developed over time.

Moreover, the state would emphasize that state government has a pretty expansive authority about how exactly presidential electors are chosen. The constitution doesn’t prohibit states from replacing electors or directing how they cast their ballots. And so, the states argue that the constitution has left it in the hands of the states of whether they chose to restrict presidential electors in this way.

The argument on the other side however, emphasizes that presidential electors hold an office, and we generally think of office holders as having discretion about how they conduct the office. The constitutional text specifically refers to the manner by which presidential electors are going to be chosen for the office, but doesn’t say anything about the possibility of state governments directing how presidential electors are going to conduct their office.

They would also emphasize that the founders originally imagined the electoral college with the possibility that presidential electors would exercise a choice in discretion as they exercise the office.

Could a decision either way affect presidential elections going forward? And, if so, how would that happen?

It could. I mean, the longstanding worry about presidential electors is that they could change the outcome of the election as the voters saw it in November. That since all the voters are doing is choosing a set of presidential electors who are then casting the official ballot for president in December, there’s always the possibility that presidential electors might go rogue, might become faithless, break their pledges, and vote for somebody other than the person that voters would have anticipated they would vote for when they were meeting.

In practice, this has never been a serious problem, in part because there’s substantial social and political pressure on presidential electors not to break their pledges. The worry about this case though, is that, if the court were to say that states can’t enforce these laws around faithless electors, it might change the culture, and encourage and incentivize more lobbying campaigns like we saw in 2016. It might encourage more presidential electors to think that they actually could, and should, break their pledges, and do something unexpected in a way that might change the outcome of an election.

This conversation is part of KUNC’s Colorado Edition from May 12. You can find the full episode here.