Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Tuesday, July 7, 2020

What Does the Supreme Court Decision on Electors Mean?

            After Justice Sonia Sotomayor recused herself, the United States Supreme Court voted unanimously in an 8-0 decision released on Monday that presidential electors must keep their pledge to support the popular vote of their state. This decision came about because two separate cases made their way through the court system. Three Washington electors broke their pledge and were fined $1,000 each, according to state law, and sued the state. Three Colorado electors planned to break their pledge. Two changed their minds when the third one was removed. However, all three electors took the matter to court. The decision by the Supreme Court is a huge win for conservatives who have been fighting to preserve the Electoral College.

            The decision clearly affirms that the Electoral College is important in our presidential elections. It balances the popular vote of the citizens with the power of the sovereign state. If the Democrat candidate carries the state, then Democrat electors become part of the Electoral College. If the Republican candidate wins the popular vote in the state, Republican electors are chosen. At least this is the way that it works in 48 states with Maine and Nebraska doing something more complex. The people vote in November, and the Electoral College votes in individuals state capitols in December.

            The states have different numbers of electors with the number being determined by the total of two U.S. Senators plus the number of state representatives in the House of Representatives. Alaska has three electoral votes because we have two Senators and one Representative, and other states have differing numbers. Zack Smith and Hans von Spakovsky gave the following explanation.

This arrangement balances the interests of the larger states with larger populations and the smaller, often more rural states with smaller populations so that presidential candidates won’t ignore those smaller states and campaign only in the large, urban population centers….

Article II of the Constitution is very straightforward. It says that states can appoint electors “in such Manner as the Legislature thereof may direct.”

Eight Justices agreed that “Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint,” meaning that as a condition of appointment, a state “can demand that [an] elector actually live up to his pledge, on pain of penalty.” 

Going further, Justice Elena Kagan, writing for these eight, noted that “nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion.”

Justice Clarence Thomas, who concurred in the judgment, rejected the majority’s Article II analysis because he believes this last point really holds the key to the outcome. 

He said, “The Constitution does not address—expressly or by necessary implication—whether States have the power to require that Presidential electors vote for the candidates chosen by the people. Article II, § 1, and the Twelfth Amendment provide for the election for the President through a body of electors. But neither speaks directly to a State’s power over elector voting.”

Regardless, all nine justices agree that the Constitution does not prohibit states from limiting electors’ discretion.

            It is amazing that all nine justices can agree on anything, and it is even more amazing that they all agree on something as important as the sovereign power of the states over their electors. This decision affirms that the Supreme Court believes that “We the People” are in control.

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