Tag Archives: Faithless Electors

Electoral College

By tmess2 | Published December 13, 2020

One of the often misunderstood aspects of U.S. elections is how the popular vote relates to the election of the President.  While, in the majority of the states, the ballot simply lists the candidates for President (along with the Vice-Presidential running mate), voters are effectively voting for a slate of electors.  The winning slate in each state then assembles on the first Monday after the second Wednesday in December at the location and time designated by that state.  After assembling, the electors for the state cast a vote for President and a vote for Vice-President.  The votes are then counted, and the electors complete six certificates of vote recording the votes of the electors for that state.  Each certificate of vote is paired with one of the previously completed certificates of ascertainment.  Federal law then directs what happens with the six certificates of vote with one going to the President of the Senate (in practice, the clerk of the Senate), two to the national archives, two to the secretary of state of the individual state, and one to the federal district court for that state.

Normally, the meeting of the electoral college is a big ceremonial event.  With Covid-19 and the potential for protests to get out of control, it appears that most of the states are planning on holding scaled-down events.

The fringe element of Trump supporters (and President Putin) are hoping for some last minute drama for Monday, but that is practically impossible for several reasons.  First, earlier this year, the U.S. Supreme Court upheld state laws requiring electors to vote for the presidential candidate to whom they are pledged.  While states have different laws on so-called faithless electors,  the net effect of those laws is that sixty-nine Biden electors are from states that replace an elector and cancel the electors vote if the elector fails to follow through on their pledge, sixty are from states that fine the elector, seventy-one are from states with pledges but no enforcement provision, and one hundred six are from states with no law on this issue.  That means that, at most, there are 237 Biden electors who could defect. Continue Reading...

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Political Robocalls and Faithless Electors — Supreme Court Overtime Edition 1 (UPDATED — 7/8)

By tmess2 | Published July 7, 2020

On Monday, the Supreme Court went into what is essentially overtime.  We are now the latest for issuing opinions since 1974 (the year of Watergate) when the last opinion from the regular term was issued the day after the Supreme Court heard the Watergate arguments.  It is unlikely that we will reach that July 25 date this year, but anything is possible.  (Given that the Watergate opinion is a key precedent on the still pending Trump Organization subpoena cases, the poetic irony has to be appreciated.)  We do have a second opinion day this week scheduled for Wednesday; so potentially Wednesday could be the last day or there could still be additional opinion days to come.  (With five cases still outstanding, getting all five on Wednesday would be somewhat surprising given the pace of opinions so far this term, but anything is possible, but there already has been one five-opinion day this term.)

Monday’s two opinions both concerned the process of elections.  On the one hand, the Barr case was brought by the lobbying group for political consultants challenging the barriers that the federal robocall statute places to even more repetitive phone calls from campaigns.  On the other hand, the Chiafalo case (and the companion case from Colorado) involves the very rules governing the conduct of the electors chosen by the various states to actually cast the “real” votes in the presidential election.

In the long run, Barr may be the more important of the two.  The federal robocall statute dates back to the early 90s (and, yes, it has been close to an utter failure).  In 2015, Congress amended the statute to pass an exception allowing the federal government to have people make robocalls seeking to collect debt owed to the government.  Some political consultants and other groups saw this amendment as an opening to raise a First Amendment complaint against the robocall statute.  The bottom line of this decision is they won the battle, but lost the war. Continue Reading...

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Supreme Court — The COVID-19 Term (Updated)

By tmess2 | Published June 26, 2020

In normal years, the Supreme Court would probably have wrapped up business for the term by now.  It has been a long time since the last time that the Supreme Court was still issuing opinions in an argued case after June.  There is still a chance that the Supreme Court might finish this term by June 30, but we are getting mixed messages from the court.  (I do expect to see opinions in all of the cases before the Supreme Court recesses, but there is a chance that some cases could be set for reargument in the fall.)

On the one hand, we have yet to get any opinions from the May arguments.  While the May arguments were two weeks later than the usual time for the April arguments, it is usual to have some of the April opinions by the early part of June.  We also have not seen the pace of opinions pick up.  In the last weeks of the term, it is not unusual to see three or more opinion days per week, and multiple opinions on each opinion day.   At the present time, while we have had second opinion days for the last two weeks, we have only gotten a total of five opinions over the last two weeks (as opposed to the more usual eight to ten opinions per week).  And the Supreme Court has only announced two opinion days for this upcoming week.

On the other hand, the Supreme Court has announced that they will have a conference on Wednesday and release orders on Thursday (rather than the normal Monday order day).  That sounds like Wednesday could be the “wrap-up” conference. Continue Reading...

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Supreme Court October 2019 Term — COVID 19 Reset

By tmess2 | Published April 18, 2020

As with other institutions of government, COVID 19 has caused a degree of chaos in the court system.  The judicial system requires a degree of interaction between parties and judges, and social distancing requires finding new ways to handle these interactions.

The Supreme Court, like every other judicial institution, has had to find ways to cope.  Of course, the Supreme Court has been a notoriously slow institution to adapt to modern technology.  It was the last federal court to accept electronic filing.  As recently as a few years ago, everything but emergency petitions were filed by mailing (or having somebody personally deliver them) to the Supreme Court.

As this site has discussed over the years, the Supreme Court is what lawyers call a discretionary court.  That means that, with a limited number of exceptions, a party has to request that the Supreme Court take a case (the formal name for the request is a petition for writ of certiorari).  The Supreme Court then decides if it wants to hear the case.  So most of the decisions of the Supreme Court are decisions to not take a case.  There are also two small categories of cases in which the Supreme Court takes and immediately decides the case — both involving a reversal of the lower court.  One category is frequently referred to as “grant, vacate, and remand.”  Those cases typically involve an issue that the Supreme Court decided while the application for review is pending.  In these cases, the Supreme Court grants review, vacates the decision on that issue by the lower court, and remands (sends the case back) for the lower court to reconsider in light of the recently decided Supreme Court case on the issue.  The other is summary reversal.  These cases typically involve the unanimous conclusion that the lower court simply ignored the prior decisions of the Supreme Court.    But every year, the Supreme Court decides that it wants to fully hear approximately 70 cases per year (representing about 1% of the applications that the Supreme Court receives). Continue Reading...

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Supreme Court and the Electoral College

By tmess2 | Published January 17, 2020

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. Continue Reading...

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