It’s been almost twenty years since the last time that the Supreme Court has taken a case involving the electoral college. In fact, you can on one or two hands the number of times that the U.S. Supreme Court has taken a case in which the sole issue was the process of electing the President.  (I can count three in the past forty years — one involving the right of the national parties to set the rules for nominating their presidential candidate and the two from 2000 involving the recount in Florida.)

This afternoon, the United States Supreme Court took two cases — Chiafolo vs. Washington from the Washington Supreme Court and Colorado Department of State vs. Baca from the United States Court of Appeals for the Tenth Circuit.  Both cases involve the state laws governing so-called “faithless electors.”

Now faithless electors are not usually a significant problem.  While the laws differ from state-to-state,  the general concept is that in every state, there is a slate of candidates for electors associated with each ticket.  In the majority of states, the ballot only lists the individuals running for President and Vice-President, but the actual candidates being elected if that ticket wins that state (or in the case of Nebraska and Maine, the individual congressional districts) are the candidates for elector.  Each state has a process by which the respective parties nominate the slate of electors — typically either a state party convention or a state party committee.  (Obviously, for new parties and independent candidates, the elector candidates are chosen by the people handling the petition to get that party/candidate on the ballot.)   The process of filling the slate normally guarantees that the electors are loyal to the state party.

But, it is the electors who ultimately cast the votes to select the president.  And some states have, over time, become paranoid about the potential that a faithless elector could alter the results of the election.  In Washington, state law requires all candidates for elector to pledge to support their party’s nominees and imposes a fine if the victorious elector votes for somebody else.  In Colorado, if an elector attempts to vote for a candidate other than his party’s nominee, his vote is not counted and he is summarily removed from office and a different person steps into the position.  The Washington Supreme Court found that Washington’s law was valid, but the Tenth Circuit found that Colorado’s law was not.  While there are some procedural issues, the main issue is whether these state laws are inconsistent with Article II and the Twelfth Amendment.  The position of elector is one created by the Constitution with responsibilities that flow from the Constitution.  While the states have authority over the process of choosing the elector, the argument is that — once the elector takes office — it would violate the Separation of Powers and the Supremacy Clause for any state to attempt to control how that elector fulfills his constitutional office.

By taking this case now, there is a real possibility that these two cases will be on the April argument docket (with a likely June opinion).  I am not sure which possibility would have the potential to create more havoc for November — the case being decided in June or the case still pending and hanging over the November election.  My hunch is that the Supreme Court intends to resolve it now so that everybody knows what the rules are when the electors meet in December to vote.

While note quite a “no-brainer,” those opposing the law have the stronger legal argument.  (Of course, those supporting the laws have the better political argument.)  The position of electors is, at the very least, a federally-created position and, generally, the states do not have the power to dictate how federal officers perform their duties.  Additionally, for the most part, while elected officials make promises to get elected, those promises are not legally enforced.  Finally, most of the discussion surrounding the framing of the Constitution viewed the purpose of the electoral college as allowing a group of well-informed citizens to essentially nominate a handful of potential presidential candidates with Congress making the final decision during an era in which the lack of national mass communication meant that only a small percentage of the population knew about the leading politicians in the rest of the country.  (That might still be true at the start of the election cycle today, but — by the general election — most people know the two major candidates.)

Of course, a holding that electors are free to vote as they please might be the legally correct result, but it will undoubtedly create turmoil when people are reminded that the process of electing a president is indirect.  (After all, there are already trolls and people who attempt to suppress the vote by emphasizing that the popular vote doesn’t “really” count.)  It will be important for Democratic activists to prepare for this ruling by one by reminding folks that 95+% of electors do vote as pledged and that the small minority who do cast protest votes have never swung an election.  Long-term, of course, this likely ruling is one more reason to abolish the electoral college, but it is unlikely that there will ever be enough votes in Congress to propose such an amendment or enough states willing to ratify such an amendment.