Thoughts And Ideas
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Thoughts And Ideas

Why Trump’s Faithless Elector Strategy Won’t Work

Two recent Supreme Court cases stand in Trump’s way: Baca v. Colorado Department of State and Chiafalo v. Washington

Credit: History in HD on Unsplash

The Atlantic’s recent report on President Donald Trump’s efforts to manipulate state presidential electors into casting faithless votes for him is unsurprising at best, expected at worst.

One reason is the President’s refusal of a peaceful transfer of power if he loses the November election. With a chorus of lawsuits awaiting him after he leaves office, Trump is trying to bury his problems with the last straws of power he holds.

Another reason is the Republican Party has been planning for moments like this since the 1970’s. At the time, Republicans learned that electoral victories didn’t always culminate in important legal accomplishments. They began the Conservative Legal Movement to increase outreach to law schools and professional societies with an overall goal of dislodging liberalism from elite educational institutions.

This strategy paid off in 2016 when Senate Majority Leader Mitch McConnell successfully blocked former President Obama from nominating Merrick Garland to the Supreme Court. It was an unprecedented move, but with Justice Anthony Kennedy set to retire in 2018, McConnell couldn’t let the opportunity slip. Afterward, the party shifted its attention toward federal justices, confirming over 200 of President Trump’s appointments.

The strategy doubles as a weapon Republicans can use against Democratic legislation while they’re in the minority as well. With so many likeminded justices in varying level of the judicial system, Republicans can use the court to tie up legislation until Republicans win enough elections to overtake the majority.

Unfortunately for Trump, this strategy directly contradicts his campaign’s efforts to influence state electors. Two recent Supreme Court cases stand in Trump’s way: Baca v. Colorado Department of State and Chiafalo v. Washington, both of which state that presidential electors are bound to the will of the people, (i.e. the state’s popular vote) and, therefore, must cast their Electoral College votes accordingly.

There are three elements that make these cases that should worry Trump’s campaign advisors. First, they directly addresses the constitutional issue of “faithless electors” — or, presidential electors as defined under Article II that cast their ballots for a candidate who does not win a state’s popular vote. A recent New York Times investigation found that “faithless electors” play an insignificant role in federal elections, accounting for less than one percent of the total electoral college votes cast in all US elections.

Second, both Baca and Chiafalo were unanimously decided by the Court in a total vote of 17–0 and the opinions were written by the Republican members of the Court. Moreover, the opinions focused on state’s rights to conduct their elections, something the Court favors greatly. Chaifalo interpreted the Article II language giving states the authority to appoint electors “in such Manner as the Legislature thereof may direct” as “the broadest power of determination” over who becomes an elector.

Third, the court’s opinions in these cases are air-tight. Even a lay reader of the opinion can see the Court is unambiguous in its opposition for a federal election system.

Case Backgrounds

Both cases were brought by former state presidential electors against their respective Secretaries of State after being relieved of their duties for casting faithless votes.

Baca involves three former Colorado state electors, Michael Baca, Polly Baca, and Robert Nemanich. Michael Baca cast his Electoral College vote for John Kasich in the 2016 election even though Hillary Clinton overwhelmingly won the state’s popular vote and was subsequently removed by former Secretary of State Wayne Williams. Baca was subsequently replaced by an elector who cast their vote for Clinton.

All three electors sued Williams alleging that Colorado’s law requiring presidential electors to vote for the candidate who wins the popular vote in that state is unconstitutional. The Colorado District Court disagreed, holding that the electors didn’t have standing to bring the case. They appealed to the 10th Circuit Court of Appeals, which ruled that “the state’s removal of Mr. Baca and nullification of his vote were unconstitutional.”

Similarly, Chiafalo was brought after three Washington-state presidential electors cast their Electoral College votes for Collin Powell even though Hillary Clinton carried the state’s popular vote. Washington state law requires presidential electors to pledge to vote for the candidate of their party and imposes a $1,000 fine for “faithless electors.” All three electors challenged the law as a violation of the First Amendment.

The Washington State Supreme Court rejected the challenge, relying on the Supreme Court precedent set forth in Ray v. Blair. Ray held that pledge requirements are consistent with both Constitutional requirements and American history, but left open the question whether state’s can enforce those requirements through legal sanctions. The Supreme Court held in Chiafalo that they can.

How Does This Impact Trump?

Trump has become increasingly reliant on “his” Supreme Court justices to bail him out of legal trouble. This is true of his legislative goals (see: the Muslim Travel Ban) and his attempts to overturn the Affordable Care Act and Roe v. Wade.

And even though he has successfully nominated two justices thus far — Neil Gorsuch and Brett Kavanaugh — both have sided against Trump on the faithless elector issue. Moreover, appointing either Barbara Lagoa or Amy Coney Barrett would provide Trump with no relief because both are staunch supporters of the 10th Amendment, which the Supreme Court used as a guide for its decision in Chiafalo.

As the Court noted in Chiafalo, “nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people [emphasis added].” This means that, on its face, a constitutional challenge to state pledge requirements must include another element, like the allegation of voter fraud.

However, Baca directly addressed this issue. Michael Baca claimed he changed his vote because of the election interference operation the Russians conducted in 2016, arguing he could not cast his vote for Clinton or Trump in good conscious because both were apart of the operation. The Court ruled that Baca’s perceived moral duty in that instance does not supersede state laws requiring him to uphold his pledge requirements.

So, even if Trump were to claim there was massive voter fraud or some kind of mail-in ballot rigging scandal, it would not justify a faithless vote by a presidential elector, in the Supreme Court’s eyes. Presidential electors must follow their state’s laws.

This would lead Trump’s legal teams to begin questioning whether their client was treated equally under the law in each state’s election. This was the central question of Bush v. Gore, the case that inevitably handed the election to George W. Bush in 2000.

In Bush, the Court’s decision focused on whether the standard for vote recounts in the State of Florida violated the Equal Protection clause of the 14th Amendment. The Court ruled it did not have jurisdiction to assure uniformity in Florida’s statewide recount, even though it mentioned the state’s glaringly unconstitutional practices. This is why the Court opined “it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.” The additional work required would be for the Florida legislature to pass laws concerning election safeguards and “orderly judicial review of any disputed matters that might arise [therefrom].”

Absent these requirements, the Court reasoned, it cannot tell Florida how to administrate its election and ordered to stay the recount.

Trump may attempt to seek refuge in the expeditious ruling from Bush. However, the only reason the Court rushed its ruling is because they felt obligated to follow a Florida statute that required all election results to be finalized by December 12 since the case they were reviewing was not on appeal.

The Court also went to great lengths to say timeliness will not impact any future ruling in similar cases if a similar statute is not at issue. It is reasonable to assume Trump will ask for an expeditious ruling for national security reasons. However, the Bush decision explicitly states “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.”

If Team Trump fails to challenge a specific electoral process, either in one state or several, the Court will not simply hand him the election on the merits of a frivolous lawsuit.

So, while Trump continuously tries to bend the US election system in his favor, voters should know the law is on their side if Trump asserts a legal challenge to the November election results.

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Robert Davis

Robert Davis

Journalist covering housing, police, and government.

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