Wealthy special interests might soon get an opportunity to influence the process by which presidential electors in the Electoral College cast their deciding votes in 2020 and beyond.
At a Glance
CLC is advocating in favor of state laws requiring that presidential electors follow the popular vote in their state.Back to top
About this Case
In 2020, the U.S. Supreme Court is scheduled to decide if a presidential elector is free under the Constitution to “vote their conscience” and cast an Electoral College ballot for anyone, ignoring the popular vote of that state.
Electors are the people who physically cast their state’s electoral votes. Colorado and Washington both have laws requiring electors to pledge their votes to the popular vote winner and have empowered state officials to enforce that pledge. The electors have challenged the states’ authority to do this.
Campaign Legal Center (CLC), in partnership with Issue One and Sidley, filed a friend-of-the-court brief with the U.S. Supreme Court on April 8, 2020, arguing that the state laws should be upheld and that the sole function of the presidential electors should be to cast, certify and transmit the vote of the state for president and vice president of the U.S.
The Faithless Elector
In most states, members of the Electoral College are pledged to vote for the candidate that wins the majority of the votes in their state. When an elector fails to vote for the candidate that wins the popular vote in their state, they break faith with the state’s voters.
So far, these votes have not changed the outcome of the election, so the issue has not yet been front and center in voters’ minds.
What’s at Stake
The outcome of this case could put the outcome of a presidential election into the hands of a few anonymous individuals, without legal guidelines on how much money can be spent to influence them.
If the court agrees with the electors brining the lawsuit, the entire Electoral College system will be upended just months before voters go to the polls in the General Election. A ruling to “unbind” presidential electors from their home state voters would create new legal loopholes at the worst possible time.
Numerous federal laws require elected officials and policy makers to follow financial ethics and transparency rules. According to CLC’s Adav Noti, writing for The Atlantic, these rules seek to ensure that officials act in the public’s interest rather than for their own financial advantage.
Presidential electors, however, have never been considered true elected officials or policy makers, so these laws do not currently cover them. So there would be nothing stopping wealthy special interests from creating a bidding war to influence electors to cast their vote in favor of their preferred candidate.
For example, electors could legally accept contributions worth millions of dollars in connection with their official duties, and the public would never know. Allowing faithless electors would invite corruption that current federal law is not equipped to prevent.
Unbinding electors would also require states to reconstruct their presidential election procedures, sometimes at great cost. States would need to urgently reconsider every aspect of nominating and selecting their presidential electors.
The legitimacy of American democracy demands that Americans go to the polls with the confidence that their vote will count and that their election system will be free from corruption. However far from perfect the current system may be, the chaos of an unbound Electoral College would be much worse.