The court said states may require members of the Electoral College to vote for the presidential candidates they had promised to support.
States can require members of the Electoral College to cast their votes for the presidential candidates they had pledged to support, the Supreme Court unanimously ruled on Monday, curbing the independence of electors and limiting one potential source of uncertainty in the 2020 presidential election.
Thirty-two states and the District of Columbia have laws requiring electors to vote as they had promised, but recent court decisions had come to opposite conclusions about whether electors may disregard their pledges.
The Supreme Court resolved the dispute on Monday in a pair of cases concerning electors in Washington State and Colorado, by saying that states are entitled to remove or punish electors who changed their votes. In states without such penalties, electors remain free to change their votes.
“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for president,” Justice Elena Kagan wrote for seven members of the court.
The parties had asked the court to put the cases on a fast track to ensure that the justices could decide them without knowing which candidate in the 2020 election would benefit. “This case permits the court to issue a decision outside of the white-hot scrutiny of a contested presidential election,” the petition in the Washington case said. The court granted review in January, and the cases were the last ones argued this term, on May 13.
The justices are often closely divided in major cases, and particularly in ones concerning election law. But they managed to find common ground on Monday.
There have been no elections in which the votes of “faithless electors” changed the result, but a swing of only 10 electors would have altered the outcomes in five presidential elections. In the 2000 election, George W. Bush beat Al Gore by five electoral votes.
Election law scholars welcomed the court’s ruling.
“The court’s decision strikes a blow for legal and political stability and sanity,” said Richard H. Pildes, a law professor at New York University. “Every American understands themselves to be voting for the persons running for president, not for members of the Electoral College, and it is now clear that states can enforce that understanding.”
Members of the Electoral College cast the actual votes for president four weeks after Election Day. Among the states and the District of Columbia that have laws requiring electors to vote as they had promised, 15 states back up their requirements by either removing rogue electors or subjecting them to financial penalties.
Since the Constitution gives states the power to appoint electors, Justice Kagan wrote, that power allows them to impose conditions on their appointment,
“A state can require, for example, that an elector live in the state or qualify as a regular voter during the relevant time period,” Justice Kagan wrote.
