The US Supreme Court is taking up the question of "faithless electors", and whether or not a elector empaneled by a state in the electoral college in a presidential contest must vote based on the state's popular vote.
The Supreme Court agreed Friday to take up an issue that could change a key element of the system America uses to elect its president, with a decision likely in the spring just as the campaign heats up.
The answer to the question could be a decisive one: Are the electors who cast the actual Electoral College ballots for president and vice president required to follow the results of the popular vote in their states? Or are they free to vote as they wish?
A decision that they are free agents could give a single elector, or a small group of them, the power to decide the outcome of a presidential election if the popular vote results in an apparent Electoral College tie or is close.
"It's not hard to imagine how a single 'faithless elector,' voting differently than his or her state did, could swing a close presidential election," said Mark Murray, NBC News senior political editor.
America has never chosen its president by direct popular vote. Instead, when voters go to the polls in November, they actually vote for a slate of electors chosen by the political parties of the presidential candidates. Those electors then meet in December, after the November election, to cast their ballots, which are counted before a joint session of Congress in January.
More than half the states have laws requiring electors to obey the results of the popular vote in their states and cast their ballots accordingly. The problem of what are known as "faithless electors" has not been much of an issue in American political history, because when an elector refuses to follow the results of a state's popular vote, the state usually simply throws the ballot away.
The cases before the Supreme Court involve faithless electors during the 2016 presidential election. Instead of voting for Hillary Clinton, who won the popular vote in Colorado, Michael Baca cast his vote for John Kasich, the former Republican governor of Ohio. And in Washington state, where Clinton also won the popular vote, three of the state's 12 electors voted for Colin Powell, the former secretary of state, instead of Clinton.
Colorado threw Baca's vote out and found another elector to vote for Clinton. Washington accepted the votes of its rebel electors but fined them for violating state law. The electors challenged the fines, but the Washington state Supreme Court upheld the state law requiring them to conform to the popular vote.
The 10th Circuit Court of Appeals in Denver reached a different conclusion, however. It said electors can vote for any legitimate candidate.
It's not really hard to imagine a scenario where the Supreme Court throws out state laws that require electors to cast their ballots for the popular vote-getter in June, and then the Democratic candidate in 2020 wins a state like Arizona, North Carolina, or Florida, and then a few electors are shaved off to vote for Trump, which could throw him a win in a close race.
We'll see where this ends up, I would think that SCOTUS would decide that this is another election matter to leave to the states, but the electoral college is also the only real national election process mapped out specifically in the Constitution as well. It's not out of the realm of possibility that we get a sweeping ruling that declares all states follow a winner-take-all format, in order to force federal uniformity for a federal election.
The right-wing noise machine is portraying the case as an effort to get rid of the electoral college completely, which won't happen, so I have no idea what Republicans actually think about this case. other than yelling "states' rights!" and walking off.
Oral arguments will be in March.
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