Breaking: Supreme Court Takes Colorado and Washington Faithless Elector Cases, Teeing Up Major Issue and Possible Uncertainty in 2020 Presidential Election

The Court’s order granting and consolidating the two cases is here.

From my earlier Slate piece on these cases:

As Lessig explained to me, the Supreme Court “should have the opportunity to reflect on the question without it determining an election one way or the other. If the court follows the Washington Supreme Court, then this uncertainty within our election process has been removed. If the Court follows the 10th Circuit, then the public has a chance to determine whether it wants to accept that result. If it doesn’t, then either the National Popular Vote compact or an amendment could remedy it.”

How would giving electors the power to vote their consciences lead to the adoption of voting along the lines of the National Popular vote compact? According to Lessig, “NPV would most likely create a significant buffer in favor of the winner, so that any changes caused by independent electors would not be likely to affect the result.” In other words, with enough states in the compact voting for the national popular vote winner, and other states not in the compact going the same way, there would be a large-enough margin in the Electoral College that a handful of faithless electors would not threaten to change the result.

Perhaps.

Despite this high risk that the presidential election results could be thrown into chaos by a handful of rogue electors, it is not clear that the country could come together at this time of polarization to amend the Constitution or adopt the NPV compact. So far, only states with Democratic majorities have adopted it. Fairly or not, Electoral College reform has become yet another partisan issue.

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