Thanks to a “faithless elector” in Washington state, Native American activist Faith Spotted Eagle received an Electoral College vote for president following the 2016 presidential election. Retired general Colin Powell also received three of the state’s 12 electoral votes despite not appearing on the ballot.
The votes were nothing more than symbolic — part of a truncated effort to prevent Donald Trump from winning the presidency. And while the actions of faithless electors — there were seven of them across the country — provided little more than a historical footnote, a recent court decision points out the need for the U.S. Supreme Court to address the issue prior to the 2020 election.
The U.S. Court of Appeals for the 10th Circuit upheld the rights of faithless electors to break with tradition and vote for the candidate of their choice. Article II of the U.S. Constitution states that “each state shall appoint” electors “in such a manner as the Legislature thereof may direct.” So when a Colorado elector chose not to vote for Hillary Clinton, who won the popular vote there, the secretary of state removed that elector. The elector sued, and that led to last week’s ruling in the circuit court.
In Washington, the four faithless electors were fined $1,000 each for not following protocol, and the state Supreme Court in May ruled that the fines were legal.
All of this is separate from arguments about all of a state’s electoral votes go to the winner of the popular vote in that state — a system that gives inordinate weight to small states. In Wyoming, for example, there is one electoral vote for every 190,000 residents; in California, there is one for every 700,000 residents. Twice in the past five presidential elections, the candidate who won the popular vote has not won the election; Clinton received about 3 million more votes than Donald Trump, and Al Gore had more votes than George W. Bush in 2000.
Several states have taken steps to commit their electoral votes to the winner of the popular vote — once states comprising a majority of the Electoral College (at least 270 votes) agree to do so. Washington adopted the legislation in 2009.
But while discussion about the fairness and efficacy of the Electoral College will — and should — continue, a more immediate concern is the issue of faithless electors. “The text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors,” reads the majority opinion from the circuit court. In theory, that opens the possibility of the Electoral College choosing somebody as president who was not even on the ballot.
The role of the Electoral College was spelled out in Federalist Paper No. 68, by Alexander Hamilton, who wrote that the process “affords a moral certainty that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
But over the years, the college has become a rubber stamp that reflects the popular vote in each state. As if American politics were not chaotic enough right now, allowing electoral voters to follow their conscience rather than precedent could further threaten a fragile system.
The Supreme Court should weigh in on the decision from the 10th Circuit Court and the case of Washington’s faithless electors to provide stability in time for next year’s presidential election. Meanwhile, we can continue to the important discussion about whether the Electoral College is outdated and presidents should be decided by the national popular vote.
