SCOTUS unanimously is in agreement about faithless electors
The Supreme Court of The United States (SCOTUS) came to a unanimous decision about how states should regard faithless electors. Electors are the individuals selected by states to cast ballots for the Electoral College reflecting how state voters cast their ballots for the U.S. President.
The question surfaced largely because of the 2016 presidential election experience wherein seven electors cast their ballots in opposition to how the people voted. If these electors cannot be trusted, it can throw the entire presidential election into disarray. Elections, then, would certainly not be predictable even if the popular vote results are confirmed before the electors cast their Electoral College ballots in December.
SCOTUS reviewed election history
We should realize that all states have not treated the issue the same. Currently 32 states and the District of Columbia have laws to ensure their electors pledge their support to the winning party’s choice. Some faithless electors are fined if they so stray. Some states actually remove such rogue electors and replace them with alternates, if needed.
Maine and Nebraska require their electors to cast their ballots in a unique manner. Two electors cast their ballots for the presidential candidate who wins the most of the state’s popular votes. The remaining electors cast their ballots for the candidate that wins the most votes in congressional districts (two for Maine, three for Nebraska).
Amy Howe reports in her SCOTUS blog:
The Constitution, Kagan pointed out, “is barebones about electors.” It provides only that states will appoint electors, who meet and cast ballots for the president, which are then sent to Washington. “Those sparse instructions,” she continued, “took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be.” Nothing in the Constitution “expressly prohibits States from taking away presidential electors’ voting discretion as Washington does.”
Kagan dismissed the history supporting the electors as “one of anomalies only.” There have been only 180 “faithless” votes out of over 23,000 cast, she observed, and more than a third of those can be attributed to one election, in which the Democratic Party’s nominee died shortly after Election Day in 1872. “Putting those aside,” she concluded, “faithless votes represent just one-half of one percent of the total.”
SCOTUS underscored the primacy of the people’s choice
Nina Totenberg notes in NPR’s article, Supreme Court Rules State ‘Faithless Elector’ Laws Constitutional that Justice Elena Kagan said Electoral College delegates have:
“… no ground for reversing” the statewide popular vote. That, she said, “accords with the Constitution — as well as with the trust of the Nation that here, We the People rule.”
Where does this decision leave us? Clinging to this last phrase, “We the People rule,” it seems to me that the people’s choice matters. Our votes matter. It reinforces the Equal Voice Voting (EVV) mantra: All Votes Matter!
SCOTUS puts the NPV promise in question
The National Popular Vote (NPV) proponents do not see it that way. Rather, they support the idea that the citizens of a sovereign state may not have their voting voices heard. Instead, the state electors are to cast their ballots, under state direction, for the candidate who wins the most of the nation’s popular votes.
Here is the danger of that approach. If a state (belonging to the NPV compact) votes as a majority (more than 50%) for a candidate not preferred by the nation, those voters in the majority are disenfranchised. Their votes are not represented in the Electoral College. This is an obvious example of an election method going counter to Kagan’s assessment that “We the People rule.” Votes from beyond the state’s borders would prevail.
More is to come, I’m sure, in this regard for elector consideration is not truly settled law. Still, if electors are to vote as true representatives of a state’s voting choice, the fundamental principles of NPV cannot prevail. It cannot deliver on its promise of a popular voting choice always winning a presidential election.
The SCOTUS ruling, then, casts a shadow of doubt upon NPV. If the decision causes NPV compact states to unconstitutionally skirt the spirit of the SCOTUS conclusion by forcing electors to vote as directed by the nationwide choice rather than according to its state citizen’s votes, the sentiment of the governed is at risk.
The SCOTUS decision reinforces the EVV perspective
EVV, on the other hand, can always promise that the SCOTUS decision is followed. In fact, EVV can promise a more granular reflection of the people’s choice is realized in the Electoral College. Much like the treatment by Maine and Nebraska’s electors, electoral votes can be split, as per the people’s vote.
In fact, EVV can go further than these two states and deliver an even more accurate reflection of the sentiment of a state’s governed citizens. For example, in the 2016 election, Maine cast three of its electoral votes to Clinton and one to Trump; while Nebraska cast all five of its electoral votes to Trump. If EVV had been used in those states instead, and the voting been the same, Maine would have split its four votes two to two; and Nebraska would have given three votes to Trump and two to Clinton. It would have been a more accurate voting result.
NPV has held out much promise. The recent SCOTUS ruling reveals how fragile the NPV promise really is. Such a revelation should dissuade other states from joining the NPV compact and should cause states already in the compact to reconsider their allegiance to their own state citizens.
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By Jerry Spriggs and the Equal Voice Voting Team