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Supreme Court Upholds State 'Faithless Elector' Laws


Today, the U.S. Supreme Court upheld state laws that prevent Electoral College delegates from going rogue, so to speak. The law on the books says that a state delegate can be removed or fined if they refuse to cast their ballot for the presidential candidate who won the popular vote in their state. The vote to keep the law as is was unanimous. Joining us now to discuss the case and what it could mean for the 2020 election is NPR legal affairs correspondent Nina Totenberg. Good morning, Nina.

NINA TOTENBERG, BYLINE: Good morning, Rachel.

MARTIN: So what was the question before the court here?

TOTENBERG: Well, as you said, these cases involve state laws that either remove or penalize Electoral College delegates if they don't vote for the presidential candidate they were pledged to support. And a handful of delegates in Colorado and Washington state challenged those laws in court, contending that they were allowed to and indeed were supposed to vote their consciences under the terms of the Constitution.

But today, the Supreme Court ruled unanimously that while some of the Founding Fathers undoubtedly viewed the Electoral College delegates as having some sort of discretion, the court said that language never made it into the Constitution. And indeed, by 1796, with the rise of political parties, the delegates were consistently voting to support their party's choice for president and vice president. That tradition was solidified by the Twelfth Amendment to the Constitution.

So today, writing for the court, Justice Elena Kagan declared that the state laws that remove or penalize those who vote contrary to the voters of the state are constitutional. She said that these laws reflect a longstanding tradition in which Electoral College delegates are not free agents but are supposed to vote for the candidate whom the state voters have chosen. As I said, the vote was 9-0. But Justices Thomas and Gorsuch had separate reasoning.

MARTIN: I mean, as I understand this, Nina, I mean, this all comes back to very recent elections - to the year 2000 and 2016, which were so exceptional because the person who won the popular vote didn't necessarily get the Electoral College votes.

TOTENBERG: And that's the second time that's happened since 2000 - starting in 2000 and then again and in 2016. And in all, that's only happened four times in our history. So it's quite amazing and a little spookifying (ph) that it's happened twice in 20 years - or less than 20 years. And back in 2016, these Electoral College delegates who didn't vote for the candidate they were pledged to sort of got the idea that if they could - the Democratic - they were all Democrats - if they could lure some Republicans to voting for a third person, like Colin Powell, maybe they could throw the election into the House of Representatives. But that didn't work, and so they went to court.

MARTIN: And these were delegates who were pledged to vote for Hillary Clinton.

TOTENBERG: They were pledged to vote for Hillary Clinton, and they didn't. And the ones in Colorado were removed, and the ones in Washington state were fined $1,000 apiece.

MARTIN: So what does this mean looking forward to the 2020 election, which could be...

TOTENBERG: Well, all the election experts I know are breathing a huge sigh of relief because they thought it would have made for chaos that there are no laws - ethics laws. They thought that Electoral College delegates would have been everything from enticed with large gifts and perhaps cash gifts to blackmailed and that it would have led to huge corruption and manipulation. And they - this really kept them up at night. But they can now breathe a sigh of relief. The Supreme Court has said Electoral College delegates have to vote for the candidate they're pledged to support.

MARTIN: And they said it unanimously, which is significant. NPR's Nina Totenberg, thank you so much.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.