The Supreme Court building glows in the night of March 18. (Michael S. Williamson/The Washington Post)
WHEN THE words “chaos” and “election” come up together in public debate, Americans pay attention — or at least they should. The last thing this country needs is any additional reason, along with a pandemic and voting rights enforcement, to worry about potential instability surrounding the upcoming November presidential vote. The stakes are especially high when the word “chaos” gets bandied about in an election case at the Supreme Court, as it did no fewer than 11 times during two hours of oral argument (via teleconference) on Wednesday.
At issue is a perennial constitutional conundrum: whether all 538 presidential electors are free to vote for whomever they please, or whether states may pass laws requiring them to cast votes for the candidate to whom they pledged their votes prior to the election — and punishing them, including criminally, if they don’t. (Maine and Nebraska choose some electors by congressional district.) There is considerable historical evidence that at least some Framers of the Constitution envisioned the electoral college as an elite body made up of independent president-selectors. Since 1796, 167 electors have voted, or attempted to vote, for candidates not backed by the voters of their states — 10 of them in 2016, as part of an abortive effort to block President Trump from taking office. Congress and the courts have generally shrugged off these wayward votes, which have never affected any election’s result.
Those 167 votes represent a tiny percentage of the total over 230 years: The predominant message to voters of real-world practice is that the electors have to do what the voters say. It would seem to follow that the states, as the appointing authority, have the power to enforce their people’s expectations against faithless electors, as they did in 2016 in both Colorado and Washington. That was the argument made by attorneys from both of those states — two of the 30 (including the District), with elector-binding laws, according to the National Conference of State Legislatures. Otherwise, Washington state solicitor general Noah G. Purcell told the justices pointedly, “those who want to meddle in our presidential elections, whether it be a foreign power or just a wealthy individual, to attempt to bribe or blackmail electors” would have an incentive to try, and states might lack the means to stop them.
While Mr. Purcell’s seems an extreme concern, we wish it were more unrealistic. There are many plausible scenarios under which the 2020 outcome hinges on one or two electoral votes. Thus, there was prudence in the notion, voiced by justices across the spectrum during the oral argument, that this particular constitutional ambiguity should be resolved, pragmatically, in favor of state autonomy and historical precedent. Justice Brett M. Kavanaugh called it “the avoid-chaos principle of judging,” and honoring it means allowing any states that wish to bind their electors legally to do so. It would be strange for the court to imply that all of the many past elections conducted under such laws were contrary to the Constitution. And it would be even stranger for the justices to unsettle the expectations of an already troubled body politic.