Do states like Washington have the power to control how electors vote?

The Supreme Court heard arguments yesterday in a case that comes out of Washington state in regards to whether or not electors have the discretion to vote as they wish, without penalty, even if they go against the popular vote and their pledge.

Former Washington AG: US Supreme Court by teleconference lacks intensity

In 2016, three Democratic electors voted for Colin Powell, in what former Washington state Attorney General Rob McKenna says was an effort to try to block Donald Trump from becoming president, hoping that moderate Republican electors would switch their votes.

“It didn’t work, of course, and under Washington state’s law, they were each fined $1,000,” McKenna told Dave Ross on Seattle’s Morning News. “It’s a relatively new development, but since 2016, some states have passed laws that allow the penalization of electors who do not cast their votes in accordance with the popular vote.”

The idea is that if the majority of a state’s population votes for Candidate A, the electors are supposed to cast their ballots for Candidate A.

“That didn’t happen in 2016 in Washington,” McKenna said. “And it also didn’t happen in Colorado, where an elector decided to cast his ballot for John Kasich.”

While a $1,000 fine may seem like not a big enough deal to take it to the Supreme Court, McKenna says the answer, according to the electors, is that they don’t like the Electoral College and want to get rid of it.

“They’re hoping that the Supreme Court will remove the ability of states to try to enforce the rule that electors cast their vote for the person who received the majority of the popular vote,” he said. “They’re hoping to upend the Electoral College so that voters, seeing that their vote can be canceled out by electors who vote their own way, might decide to get rid of the Electoral College through a constitutional amendment.”

The justices asked a number of hypothetical questions during Wednesday’s oral arguments. Why can’t you remove an elector who goes back on his or her pledge? What if the elector were bribed ten minutes before the election?

“I think both sides had good points to make because the Constitution … doesn’t cover this situation,” McKenna said. “It doesn’t cover this scenario where a state decides to enforce a requirement that an elector cast his or her ballot in the way that the popular vote went. The Constitution empowers the states to appoint electors, it doesn’t say anything about their power to remove them.”

In terms of bribery, if one or 100 electors were bribed between election day and casting their vote, then could a state remove them? The answer here was basically no, they could not be removed.

Justice Clarence Thomas pointed out that if an elector can vote for anyone they want, then the elector could vote for Frodo Baggins from The Lord of the Rings.

“His point was, if you’re letting the electors vote however they want, you’re letting the electors vote however they want,” McKenna said. “I mean, after all, voters routinely write in Mickey Mouse and Donald Duck in the write-in spot on the ballot.”

“There are some who believe that the framers of the Constitution actually intended that the electors would act … as wise people, that they would look at the popular vote and take that into consideration,” McKenna added. “But ultimately, we’re relying on these wise people to pick the best person. And that’s just not a majority view.”

In the history of the United States, there have been very few instances when an elector has not cast his or her vote for the person who received a majority of the popular vote in their state, McKenna said.

Court ruling could change how the electoral college works in Washington

“If the framers had really wanted that model, they probably would have put limits on the state’s ability to remove the electors. They would have put in protections for the electors so they could cast their vote as they saw fit. They didn’t do that,” McKenna said. “There’s also the fact that there really isn’t a problem here. In other words, we haven’t seen a big outcry demanding that electors be able to vote however they want. The system has worked pretty well for the last 220 years, at least.”

If the state of Washington wins, electors could be fined or removed if they don’t vote as they pledge.

“In Washington state in 2019, the Legislature changed the law,” McKenna said. “They removed the penalty provisions, and they simply provide now that an elector who does not cast her or his ballot according to the popular vote will be removed.”

He believes this is what the court is likely to uphold.

“The fact is that if voters don’t like that, if they think electors ought to have more discretion, they can always pressure the Legislature to change the law or, for that matter, replace the Legislature,” he added. “So I think that the Supreme Court’s likely to go that way and that these electors are going to lose their bid to destroy the Electoral College.”

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