WASHINGTON — Supreme Court justices on Wednesday grilled lawyers advocating that “electors” in the complex Electoral College system that decides the winner of presidential elections are free to disregard laws directing them to back the candidate who prevails in their state’s popular vote.
If enough electors do so, it could upend an election, or, as some of the justices said, cause “chaos.”
The justices heard arguments in two closely watched cases — one from Colorado and one from Washington state — less than six months before the Nov. 3 election in which presumptive Democratic nominee Joe Biden challenges Republican President Donald Trump.
The justices also expressed concern over maintaining states’ ability to remove electors who have been bribed to vote for a particular candidate. On the other hand, the justices also pressed attorneys for Colorado and Washington state whether there are any limits on state powers seeking to control how electors vote.
The cases involve so-called faithless electors who did not vote for Democratic candidate Hillary Clinton in the 2016 Electoral College even though she won the popular vote in their states.
Colorado and Washington are among the 48 states — only Maine and Nebraska excepted — with winner-takes-all systems awarding all electors to the candidate who wins the state’s popular vote. The justices must decide if states can penalize faithless electors with actions such as monetary fines or removal from the role.
Justice Brett Kavanaugh asked whether the court should embrace the “avoid-chaos principle of judging, which suggests that if it’s a close call or a tie-breaker we shouldn’t facilitate or create chaos.”
Lawyer Lawrence Lessig, representing the Washington electors, conceded that was a possibility.
Justice Clarence Thomas told a lawyer representing Colorado’s electors that a despite a promise to support the popular-vote winner an elector “can suddenly say, ‘I’m going to vote for Frodo Baggins,’” referring to the character from the fantasy novel Lord of the Rings.
The Electoral College vote, held weeks after the general election, is often overlooked as a mere formality in which the electors — typically party loyalists — actually vote for the winner of their state’s popular vote.
But in 2016, 10 of the 538 electors voted for someone else. While that number of so-called faithless electors did not change the election’s outcome, it would have in five of the 58 previous presidential elections.
State officials have said faithless electors threaten the integrity of American democracy by subverting the will of the electorate and opening the door to corruption. The plaintiffs said the Constitution requires them to exercise independent judgment to prevent unfit candidates from taking office.
“It’s somewhat hard to understand the concept of something I am pledged — bound — to do. I have made a promise to do something. But that promise is unenforceable,” Justice Ruth Bader Ginsburg said.
Chiafalo and another lead plaintiff, Michael Baca, were Democratic electors who sought to persuade Republican electors to disregard their pledges and help deny Trump the presidency. Baca, who now lives in Las Vegas, was a Colorado elector. They cast their ballots for moderate Republicans and not Clinton.
Chiafalo was fined $1,000 by Washington state. Baca’s vote was canceled by Colorado officials. The electors argued that the penalties against them by their states violated the Constitution’s Article II and its 12th Amendment, which delineate the Electoral College process.
A lower court upheld Washington state’s fine against Chiafalo and two other faithless electors. Another court concluded that Colorado’s action against Baca violated his constitutional rights.