Supreme Court Case to be Heard This Week on Electoral College Could Create Chaos in Presidential Election

WASHINGTON - On Wednesday May 13, the U.S. Supreme Court will hear arguments in cases about the electoral college called Chiafalo v. Washington and Colorado v. Baca. A decision is expected less than six months before the general election.

Campaign Legal Center (CLC) is supporting the states of Washington and Colorado, who seek to enforce laws that disallow ‘faithless electors’ who refuse to follow the popular vote in their state. Electors are the 538 people – typically party loyalists – that are largely unknown to voters and whose power to choose their state’s electoral vote has largely been assumed to be a formality until now.

Watch CLC’s video on faithless electors.

The electors have challenged their state laws because they seek to ignore the popular vote in their state. If the court rules to “unbind” electors, the integrity of the presidential election could be called into question during a critical election year. Currently, 32 states and the District of Columbia have laws controlling how electors vote.

“Elections should be determined by voters,” said Paul Smith, vice president of CLC. “The legitimacy of American democracy demands that voters go to the polls with the confidence that their vote will count and that their election system will be free from corruption. The presidential election could be thrown into chaos if electors are permitted by the U.S. Supreme Court to ignore the will of their home-state voters and vote for whomever they want. This outcome would introduce new opportunities for corruption that would cast doubt in the legitimacy of elections. An elector could legally accept contributions worth millions of dollars in connection with their official duties, and the public would never know. 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.”

“Presidential electors are not considered elected officials, and as a result are not subject to the ethics and transparency laws most officials face,” said Adav Noti, senior director of trial litigation and chief of staff to CLC. “If they were ‘unbound’ from the popular vote, the same temptations that affect officeholders would apply – the temptation to accept secret ‘gifts’ in connection with their positions, or even to sell their votes. The court’s decision in this case could transform presidential electors from unknown functionaries to the latest targets of the big-money influence game around what should not be for sale: our democracy.”


Further reading:

  • Paul Smith and CLC Chief of Staff Adav Noti published a piece in SCOTUSblog on the case, which explores what would happen if electors are not subject to federal campaign finance and ethics laws, something that our system is not currently equipped to handle.
  • On April 8, CLC and Issue One filed a brief in the U.S. Supreme Court arguing that states should be allowed to require presidential electors to vote for the winner of the popular vote in their home state.
  • Paul Smith wrote an op-ed about the case in Talking Points Memo in October.
  • Adav Noti wrote about the case in The Atlantic in March.