Protesters demonstrate against Donald Trump in Washington DC in anticipation of the December 19, 2016, meeting of the electoral college. Image via Shutterstock Supreme Court ruling on 'faithless electors'
Protesters demonstrate against Donald Trump in Washington DC in anticipation of the December 19, 2016, meeting of the electoral college. Image via Shutterstock

But first: What is a “faithless elector”?

The U.S. Supreme Court ruled on Monday in favor of state laws that punish members of the Electoral College who refuse to cast their vote for their states’ popular vote winner. The decision was unanimous.

In order to understand this ruling, one must understand what a faithless elector is and how we got here. 

What is a “faithless elector”?

A “faithless elector” is someone who refuses to vote for the presidential candidate to whom they are pledged, in accordance with their states’ popular vote.

How many, and which, states have “faithless elector” laws? What happens to electors who don’t vote as they’re supposed to?

In 32 states, as well as Washington, D.C., electors are required to vote in line with the will of the voters. In other words, if the majority of voters in a state cast their ballot for a Democratic candidate, the state’s Electoral College members must vote for that Democratic candidate.

In 15 of those states—Arizona, California, Colorado, Indiana, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Carolina, Oklahoma, South Carolina, Utah, and Washington—so-called “faithless electors” can have their votes canceled, or find themselves replaced or fined. And Maine’s secretary of state has determined such an elector could also be removed, in spite of there being no such law on the books.

Why did the Supreme Court uphold “faithless elector” laws?

Justice Elena Kagan, writing for the court, said a state is permitted to instruct “electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”

“Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does,” Kagan wrote, noting that “while two contemporaneous State Constitutions incorporated language calling for the exercise of elector discretion, no language of that kind made it into the Federal Constitution.”

How did this case come about?

The question of how much freedom an elector has became a legal issue after, in 2016, three Hillary Clinton electors in Washington and another in Colorado declined to vote for her in spite of her popular vote wins in both states. Their goal was to serve as an example that might convince Donald Trump delegates not to vote for him. 

A federal appeals court in Denver ruled in the Clinton elector’s favor, whereas the Washington State Supreme Court ruled against, upholding a $1,000 fine against them.

How many electoral votes do you need to win the presidency?

In order to win the presidency, a candidate must win at least 270 electoral votes in the Electoral College, out of a total of 538. 

How big of a problem is this?

The vast majority of the time, those electors vote in accordance with the voters in their state. However, not always.

There were a total of 10 faithless electors in 2016, PBS reports, which included a fourth individual in Washington state, a Democratic elector in Hawaii, and two Republican electors in Texas. Additionally, Democratic electors who said they would not vote for Clinton were replaced in both Maine and Minnesota.

Twice in recent history the presidential candidate who lost the popular vote won the presidency, thanks to the Electoral College: George W. Bush’s defeat of Al Gore in 2000 and Trump’s defeat of Clinton in 2016. 

Why were justices concerned about “faithless electors” subverting the will of the people?

During oral arguments, which occurred in May, justices expressed concern that if electors were free to vote however they liked, a close election could prompt political parties to put pressure on them to decide in their favor. 

Justice Samuel Alito said it could lead to “a massive campaign to try to influence electors,” resulting in “a long period of uncertainty about who the next president was going to be.”

Why is this ruling so important?

As justices Kagan and Alito reflected in their statements, Americans need to be confident in the process by which their president is elected. While there are widespread concerns regarding the Electoral College—with many believing it should be abolished entirely— the idea of electors choosing the president unattached to the will of the voters strikes at the heart of Democracy. 

The nonpartisan political site 270toWin called the ruling “a welcome decision.” 

“The presidential election process in this country is contentious enough. In modern times, acting as an elector is essentially an honorary role and the actual vote of electors is largely symbolic,” a post on the site reads

“That being the case, there’s no good reason for an individual elector to place his or her judgment in front of the decision the people of that state made on Election Day.  While these faithless electors have been a harmless diversion through American history, imagine the chaos that would ensue in a close – or even tied – election where one or more electors vote in a way that changed the outcome.” 

Why do some people think we should get rid of the Electoral College?

The Electoral College stands in the way of direct democracy, preventing the popular vote from deciding who becomes president. As a result of the number of electors being based on the number of representatives in Congress, which includes two senators from each state regardless of population size. 

For example, 12% of the U.S. population lives in California but the state only holds 10% of electoral votes.

The Electoral College also has its roots in slavery, with Southern states worried that Black people in the north, with greater access to voting, could sway the election. The compromise was to allow Southern states to count slaves, albeit as only 3/5ths of a person, when determining the overall count in the Electoral College.

Jessica A. Levinson, a professor at Loyola Law School in Los Angeles who studies election law, told the New York Times she thought the Supreme Court’s ruling could indirectly help those advocating for the abolishment of the Electoral College. Electors no longer have the ability to go rogue, so to speak, which may increase pressure to move to a new system.

“By strengthening the Electoral College and making it more rigid, I think it actually emboldens the national popular vote movement,” Levinson said.