This petition presents a clear split in authority between state and federal courts on a critically important question of federal constitutional law: whether, after appointment, a state may by law direct how presidential electors cast their votes for President and Vice President, and enforce that direction through legal penalties. This petition presents this unresolved question cleanly and in a context where resolution of the question would not directly affect the outcome of presidential election.
The Washington Supreme Court held that states have the power to direct how electors perform their duties after appointment, and that the State may enforce that power through a fine. Petitioners believe that the fines in this case are the very first imposed on any presidential elector in the history of the Republic.
Yet Petitioners are not the first electors to cast their ballots independently. Indeed, from the birth of the Republic, electors have cast their ballots contrary to legislative direction or expectation without penalty or legal consequence.
Just two months after the Washington Supreme Court’s decision, the Tenth Circuit reached the exact opposite conclusion in another case involving 2016 presidential electors. Contrary to the Washington Supreme Court’s decision below, the Tenth Circuit held that “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion.” Baca v. Colorado Dep’t of State, 935 F.3d 887, 955 (10th Cir. 2019). Unlike the Washington Supreme Court, which authorized a state’s unprecedented restriction of elector freedom, the Tenth Circuit found unconstitutional Colorado’s attempt to control the vote of its electors.
This Court should resolve this conflict now, before it arises within the context of a contested election. In the most recent presidential election, ten of the 538 presidential electors either cast presidential votes for candidates other than the nominees of their party,1 or attempted to do so and were replaced with other electors on the day of voting.2 A swing by that same number of electors would have changed the results in five of fifty-eight prior presidential elections. And as the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this Court to resolve the question of electoral freedom within the context of an ongoing contest.
The Supreme Court should avoid that dangerous possibility. This case gives the Court the rare opportunity to decide a constitutional question relate to presidential selection in a non-emergency setting. In contrast to this Court’s most recent encounters with the law of presidential electors, such as Ray v. Blair, 343 U.S. 230 (1952), and Bush v. Gore, 531 U.S. 98 (2000)—both of which were decided in mere days, by necessity—this appeal would give the Court ample time to consider important evidence from the Founding and across the Nation’s history. And this case permits the Court to issue a decision outside of the white-hot scrutiny of a contested presidential election.
There is no reason to allow this direct split to linger. No other court could resolve this question before the next election. This Court would therefore gain nothing from waiting to grant a case on this issue and letting the split stand—but the consequences of delay could be severe.
I wrote about these cases last month at Slate, The Coming Reckoning Over the Electoral College: A ploy to bring the issue to the Supreme Court could backfire.