Washington, DC – Today, the U.S. Supreme Court has agreed to hear two cases challenging state attempts to penalize Electoral College delegates who fail to vote for the presidential candidate they were pledged to support. Electoral College delegates are selected by each party, and under state laws, they are pledged to cast their ballots for the candidate who carries the popular vote.
Individual states have tried to prevent “faithless elector” votes by enacting laws to remove them or fine them or both. Now, just as the presidential campaign is heating up, the Supreme Court has agreed to hear challenges to such state laws in Washington and Colorado.
“This court should resolve this conflict now, before it arises within the context of a contested election,” Lawrence Lessig, a Harvard law professor who is the attorney for the Washington state electors, said. “As the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this court to resolve the question of electoral freedom within the context of an ongoing contest.”
In October of 2019, attorneys at Equal Citizens petitioned the Supreme Court to hear the case about controlling the votes of presidential electors cases in order to resolve a conflict between courts in Washington and Colorado. If the Supreme Court accepts the case, it would issue a decision by the summer of 2020, well before the presidential election.
The presidential electors are represented by Harvard Law Professor and Equal Citizens Founder Lawrence Lessig, his colleague at Equal Citizens Jason Harrow, and his colleagues, Sumeer Singla, Daniel Brown and Hunter Abell at Williams Kastner, and Jonah Harrison of Arête Law in Seattle.
In May, the Washington Supreme Court upheld unprecedented fines on three presidential electors who did not vote for Clinton or Trump. In August, the U.S. Court of Appeals in Denver issued a landmark opinion disagreeing and confirming that presidential electors have the constitutional right to vote for whoever they please, and cannot be bound to vote for the state’s popular vote winner. That court closely analyzed the Constitution’s text and canvassed centuries of history and concluded that “the Constitution provides presidential electors with discretion in casting their votes for President and Vice President.”
However the high court rules, the cases are likely to focus national attention on Electoral College in an era when two presidential candidates have lost the popular vote but won the presidential election in the Electoral College.