The United States Supreme Court is expected to rule on a case in the coming weeks that could change the outcome of the 2020 presidential election after voters go to the polls in November.
The court is set to decide if the 538 Electoral College delegates are bound to vote in accordance with the election results in their states or if they are allowed to decide on their own for whom they will vote.
Cases from Washington and Colorado concerning “faithless electors” were presented to the court last month, leaving the justices to decide if those selecting the next president of the United States must vote as their state did or if they can decide on their own for whom to cast their votes.
So what are faithless electors, do any states allow them and what will the Supreme Court’s decision mean?
Here is what we know about the cases now.
What is a faithless elector?
A faithless elector is a delegate to the Electoral College who does not vote for the presidential or vice-presidential candidate for whom they had pledged to vote.
What are the two cases the Supreme Court heard?
Both cases center on the question of whether states can regulate faithless electors.
In Chiafalo v. Washington, three of the state’s 12 electors voted for Colin Powell, the former secretary of state. A fourth voted for Faith Spotted Eagle, a Native American elder and activist from South Dakota. Hillary Clinton had won the popular vote for president in Washington.
Washington accepted the votes of the four electors but fined them for violating state law. Three of the electors challenged the fines. The state Supreme Court upheld the law requiring them to cast their ballot along the line of the popular vote.
In Colorado Department of State v. Baca, Micheal Baca, a Democratic elector, cast his vote for Ohio Gov. John Kasich, a Republican, in an attempt to swing the Electoral College vote away from Republican Donald Trump. Colorado’s secretary of state refused to count Baca’s vote and moved to replace him as an elector. Baca sued the state.
How many states require Electoral College delegates to vote for a pledged candidate?
According to Fairvote.org, 32 states and the District of Columbia have laws requiring electors to vote for the candidate to whom they are pledged.
Seventeen of those states do not provide for any penalty or any mechanism to stop an elector who does not vote for the candidate they are pledged to from having that vote counted.
Four states have a penalty for a faithless vote,
Eleven states provide for the vote to be canceled and the faithless elector removed and replaced.
Neither Colorado nor Maine has state laws that provide for canceling a faithless elector’s vote, but the secretaries of state in those states have determined that a faithless elector’s vote can be canceled.
According to Fairvote.org, the Uniform Law Commission drafted and a law called the Uniform Faithful Presidential Electors Act that provides for electors to pledge to vote for a candidate and to be replaced if they do not vote as pledged.
So far, Indiana, Minnesota, Montana, Nebraska, Nevada and Washington have adopted this law.
What is the Electoral College?
When you vote for president, you are not directly voting for the person you support to become president.
Instead, you are voting for a slate of electors appointed in their states by the political parties of the presidential candidate you voted for.
Those electors are delegates to the Electoral College.
On the “first Monday after the second Wednesday in December,” according to the Constitution, the electors cast their ballots. Those ballots are certified then counted during a joint session of Congress in January. On that day, the president is officially elected to office.
Has a faithless elector ever changed the outcome of an election?
No faithless elector has ever changed the results of an election.
In 58 presidential elections, 165 Electoral College electors have not cast their votes for president or vice president as prescribed by their state. None of those votes changed the outcome of the election.
What will the ruling mean?
The Supreme Court ruled in 1952 that states do not violate the Constitution if they require electors to pledge to cast their ballot to reflect the way the popular vote was cast in their state.
A ruling in favor of electors would allow the delegates to ignore the popular vote of their state and vote for whichever candidate they wish.
A ruling in favor of the states would allow state governments to hold electors to their pledges, with the possibility of imposing a fine or removing the elector and replacing him.