The Supreme Court in Future Presidential Elections

Supreme Court decision of 2000

We all are aware of the Supreme Court’s participation in the 2000 presidential election. The decision interrupted Florida’s ballot counting and may have erroneously given Bush the winning edge for the election over Gore.

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Are we approaching a similar Supreme Court decision that could be viewed as interference by some and protection by others? Court decisions this past summer shows how volatile presidential elections can be.

U.S. Circuit Court of Appeals recent decision

Jesse Paul, of The Colorado Sun, reported that the 10thU.S. Circuit Court of Appeals decided, by a two to one majority, that faithless electors don’t have to vote as the state’s citizens do. He reports that Colorado’s Secretary of State, Jena Griswold, said that the decision:

… sets an extremely dangerous precedent that would enable a few people to override the majority of Colorado votes.We are reviewing this decision with our attorneys and will vigorously protect Colorado voters. … The idea that all voters should be heard isn’t a partisan issue. It’s an American issue.

Colorado’s former Deputy Secretary of State, Suzanne Staiert, said the decision:

…throws out the will of the voters.

Not all concur. Lawrence Lessig, Harvard Law professor who favors the National Popular Vote (NPV) bill, weighed in with:

This is an incredibly thoughtful decision that could advance substantially our campaign to reform the Electoral College.

As Jesse Paul reports:

The case will likely now go to the U.S. Supreme Court for the possibility of further review.

Washington State Supreme Court’s recent decision

As polarizing as the U.S. Circuit Court decision might be, previous summer history adds more to the equation. In May, the Washington State Supreme Court came to an opposing conclusion. David G. Savage, of the Los Angeles Times, noted how its eight to one decision declared:

… the Constitution “gives to the state absolute authority in the manner of appointing electors. … The power of electors to vote comes from the state, and the elector has no personal right to that role.”

Mr. Savage further reports Pepperdine Law Professor Derek T. Muller’s response:

The breath of this opinion — a suggestion that there’s a virtually unfettered choice — is what’s the most remarkable part of it. For decades, electors and states have had an uneasy kind of truce. Electors typically aren’t faithless, and states have wielded the threat of replacement. This opinion, however, collapses that truce. Electors are now instructed that they can vote for whomever they want, and replacement is not an option. One wonder whether electors will be more inclined to stray in 2020, particularly given fawning attention from disgruntled voters.

Disloyal electors make a difference

These are important decisions. Disloyal electors are an oddity in our presidential elections. Having so many as we had in 2016 (seven, never experienced before) was drastically beyond expectations. We may not experience future rogue electors for a long time, or they may surface again in 2020.

Does it really make a difference? Even counting the disloyal seven, Trump won the Electoral College by 77 electoral votes. What harm could a few strays do?

Trust is important in presidential elections

While all of this back-and-forth may seem irrelevant in the larger scheme of things, don’t be fooled. Disloyalty among our electors reflects a rather cavalier attitude and behavior by those entrusted to retain confidence in the process.

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Trust is where the whole presidential election process resides. Much like our paper currency, we trust what backs it. Stability begets trust. Doubt and unpredictability erode it. It’s telling when voter turnout remains low.

Our Founding Fathers, not entirely trusting an uninformed populace, inserted electors into the system. It was a checks-and-balances device to ensure informed citizens made the final election decisions. You can almost imagine them giving a collective sigh of relief as they implemented the Electoral College.

Today, given the span and depth of journalism, the speed of media coverage – be it social media or professional – means information is more accessible than in 1787. We can argue that we still don’t have a truly informed public, but we cannot deny information is available.

I agree with Professor Muller. We, as a nation, have exercised a trusted convention, expecting our electors to reflect how we vote. Some states even impose penalties upon their electors if they stray. If we cannot trust them, why have them, given today’s shift in our news culture?

NPV brings instability to presidential elections

The elector consideration is headed to the Supreme Court. If the court decides electors are allowed to be free from any election constraints, the NPV idea will have its day. If the Supreme Court decides that the votes of a state must be reflected by its electors, then NPV will be Dead on Arrival (DOA).

NPV, it should be noted, not only has a steep hill to climb before it reaches the 270-electoral-vote threshold, it is subject to fail if it does. The Supreme Court will surely weigh in on the decisions noted above. Other Supreme Court decisions, too, will be sought to protect state sovereignty in presidential elections.

Equal Voice Voting can be trusted

Equal Voice Voting (EVV) has more legal resilience than does NPV. If rogue electors are allowed in a state using EVV, only that state’s election suffers without affecting a larger interstate compact. If rogue electors are not allowed, a state will enjoy a true voting reflection of its citizenry’s voting sentiment.

EVV confidently stands on trust because it reflects the voting sentiment of the people, making all votes matter. In follows, then, EVV can restore trust and confidence in our presidential election system – something even the Supreme Court would want.

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By Jerry Spriggs & the Equal Voice Voting Team

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