The court didn't fix everything. Faithless electors could still throw the election, and Congress would be in chaos if Trump challenged mail ballots.
The Supreme Court voted Monday for stability in this year’s presidential election. Let’s hope the justices are successful in achieving that goal.
In a pair of cases involving so-called faithless electors, the high court unanimously ruled that states have the constitutional power to force people elected to serve in the Electoral College to cast their official ballots for president in accordance with their state's popular vote. States, in other words, can prevent the electors from "going rogue" — as several did in 2016 by casting ballots for Colin Powell, John Kasich and Faith Spotted Eagle.
The court clearly was motivated by a desire to avoid destabilizing the system as much as possible. The justices announced as much at the time of oral argument. Justice Brett Kavanaugh, for example, invoked "the avoid-chaos principle of judging," which he took to mean that the court should not interpret the Constitution "to facilitate or create chaos" if there is a way to interpret it otherwise.
Many states still allow 'going rogue'
Monday’s ruling followed through on that approach. Justice Elena Kagan, writing for the court, acknowledged that at the beginning of the republic there was some expectation that electors would exercise independent judgment. But she explained that the actual text of the Constitution does not compel that electors have this autonomy.
She also observed that the original expectation quickly disappeared and soon the contrary expectation developed: that electors would be loyal to their own political parties and thus conform their votes to their party’s presidential nominee. The court was entitled, she explained, to construe the Constitution in accordance with this subsequent practice and thereby have the system act as Americans now generally assume it does.
Thus, if the court has its way, there will be no risk of a faithless elector being a wild card in this year's election. Unfortunately, it is not so simple. The justices’ ruling permits states to prevent faithless electors, but it does not require that they do so.
Only 32 states have laws attempting to bind electors to the state’s popular vote, and not all of them discount the deviant vote. And 18 states still have laws giving electors the freedom to vote independently if they so choose. Thus, absent change between now and November, there is the risk of chaos injecting itself into the system despite the court’s decision.
As a practical matter, this particular risk is small. But it is not zero. The scenario to think about is an extremely close outcome in the Electoral College: for example, 270-268 or 269-269, neither of which is unrealistic if you play around with an Electoral College calculator on the internet. Those are situations where just one or two faithless electors could change the result, throw the whole system into turmoil and set up the possibility of a raging dispute in Congress on Jan. 6, when the two congressional chambers meet in a special joint session to open and count the Electoral College votes from the states.
The greater risk of instability comes not from faithless electors but from the way that joint session of Congress operates, a topic that was not touched by the court’s decision Monday. The 12th Amendment to the Constitution requires this joint session but does not specify how it is to be conducted. Congress added some details in an 1887 law, but it also has glaring ambiguities and some impenetrably convoluted verbiage.
What if Trump challenges mail ballots?
Even without any faithless electors, it is easy to imagine how Congress could be confronted with a battle over the electoral votes from one or more states and no clear procedures for how to resolve it. In fact, it happened in the 1876 Hayes-Tilden election, which was not settled until two days before Inauguration Day and only because of a compromise that ended Reconstruction. The same type of problem could happen now, for example, over an all out fight over mail-in ballots.
Suppose former Vice President Joe Biden wins the popular vote in enough states for an Electoral College victory, but only by counting vote-by-mail ballots — the kind of ballots that President Donald Trump and Attorney General William Barr have denounced (without substantiation) as inherently unreliable. Imagine, then, Trump and Barr persuading the legislatures of enough states to appoint electors who will vote for Trump, in opposition to the certified popular vote based on the counting of vote-by-mail ballots. That kind of dispute could reach Congress on Jan. 6, with lawmakers ill equipped to handle it because of inadequate existing procedures.
The Supreme Court's faithless electors decision, regrettably, does nothing to eliminate that risk of instability. In fact, it arguably adds to the risk insofar as it reiterates precedent establishing that the Constitution gives states "the broadest power of determination" in appointing electors. That language in the opinion, even if not so intended, could be taken as an invitation for state legislatures to appoint their own electors in opposition to the state’s popular vote — as Trump and Barr might urge them to do.
Thus, despite the court’s hope for stability this year, it provides no guarantee. Before November, Congress should fix its own procedures for receiving and counting Electoral College votes. If it doesn’t, the nation could be in for a shock.
Edward B. Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University and is director of its election law program. His book, "Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College," was published in December. Follow him on Twitter: @NedFoley