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Opinion Like it or not, faithless electors have a right to be unfaithful

A voting booth is seen as voting opens for the midterm elections at P.S. 140 in Manhattan on Nov. 6, 2018. (Andrew Kelly/Reuters)

The Supreme Court will soon decide whether to decide a dispute between lower courts about a recurring problem that has not been a serious problem. If, however, “faithless electors” ever become such a problem, it would propel the court into a political maelstrom with high stakes and intense passions, with an inflexible deadline impending. So, the court should answer this question: Do “faithless electors” have a constitutional right to be such?

They are people who are selected to cast a state’s electoral college votes and who, after the popular votes have been tabulated, vote contrary to their public commitment, to the public’s expectations and to state statutes that penalize electors who vote contrary to the party they were designated to represent.

In 2016, 10 of the 538 designated electors either cast their votes for people other than the nominees of these electors’ parties, or tried to and were blocked from doing so. A change of 10 electoral votes would have switched the outcome of five of the 58 previous elections .

With criticism flying about the electoral college, here's what you need to know about our system for electing the president. (Video: Jenny Starrs/The Washington Post)

In Washington state , three Democratic electors voted for Republican Colin Powell rather than Hillary Clinton, and each was fined $1,000 . Washington state’s Supreme Court upheld the fines, arguing that “nothing in [the Constitution] suggests that electors have discretion to cast their votes without limitation.” In Colorado , however, a Democratic elector voted for Republican Ohio Gov. John Kasich rather than Clinton, and Colorado’s secretary of state nullified the vote. But the U.S. Court of Appeals for the 10th Circuit held that presidential electors have “the right to cast a vote for president . . . with discretion.”

Clearly, Washington state’s court was mistaken, as are the majority of states, including Washington and Colorado, that have laws denying electors discretion. Washington state’s court was correct that nothing in the Constitution grants discretion. But nothing denies it. The Constitution says each state shall appoint electors “ in such manner as the Legislature thereof may direct .” The Washington court decided simply that the state power to choose the manner of selecting electors is “absolute” and — non sequitur alert — therefore includes each state’s discretion to deny discretion to the electors. A contrary conclusion is justified by Congress’s practice of counting and accepting votes that electors cast for candidates other than those the electors were pledged to support.

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This practice of respecting electors’ discretion is congruent with founding-era debates about, and behavior of, presidential electors. In Federalist 68 , Alexander Hamilton justified regarding electors as independent actors because “a small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite” for the complex and momentous task of selecting a president. The fact that the electoral college no longer functions as the framers intended is irrelevant to the question of whether electors are independent actors.

If the Supreme Court resolves the conflict between the Washington court and the 10th Circuit, and does so in the 10th Circuit’s favor, it will accomplish two things, one of prospective importance and one of immediate importance. It will guarantee that, in the event that in some future election faithless electors are numerous enough to alter an election’s outcome, the court will at least not have to start from scratch in thinking through the issue of whether electors have a right to be unfaithful.

And by affirming that right, the court will make less likely the exercise of that right. This is so because the court will incentivize state political parties to be diligent about selecting steadfast electors.

This might matter now more than usual. America’s increasing polarization has been apparent for several decades. In the first 11 elections after World War II , 1948 to 1988, seven times the victor won more than 400 electoral votes, and twice he won more than 500. Since 1988, no one has received 400 electoral votes, and the winners have averaged just 330. Since 1988, every election has had a popular-vote margin of less than 10 percent . Narrow popular-vote margins do not guarantee close electoral-vote margins: One of the electoral college’s virtues is that it tends to magnify the decisiveness of the victor’s victory. However, close partisan balances in the popular vote increase the chances of a narrow margin in the electoral college. In 2000, George W. Bush, who lost the popular vote to Al Gore, won the presidency by winning Florida by 537 votes , thereby winning in the electoral college by five votes .

Close elections in turbulent times can excite rogue electors. That they have a right to be such does not make them wholesome.

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