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SCOTUS weighs fate of ‘faithless electors’ ahead of 2020 election

Can states punish presidential electors for bucking a pledge to vote for their state's winner? That was the question at the heart of Wednesday’s Supreme Court arguments, held once again by phone. Some states sought to invalidate the votes of these so-called “faithless electors” after the 2016 election. The electors sued, and the case has major implications for the next election. John Yang reports.

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  • Judy Woodruff:

    Can states punish presidential electors for bucking a pledge to vote for the winner in their state?

    That was the question at the heart of today's Supreme Court arguments.

    John Yang has the story.

  • Micheal Baca:

    I'm just a guy. I was just a regular person. I wasn't a politician.

  • John Yang:

    He may be a regular guy, but Micheal Baca was one of just 538 people chosen to vote for president in 2016.

    That's right. While more than 150 million Americans headed to the polls on November 8, 2016, to choose between Donald Trump and Hillary Clinton, the presidency was actually decided weeks later by the 538 members of the Electoral College.

  • Narrator:

    When people cast their vote, they're actually voting for a group of people called electors.

  • John Yang:

    This indirect election of the president is established in the Constitution. Each state has the same number of electoral votes as their representation in the House and the Senate.

    Candidates need 270 votes to win, and most states are winner-take-all. In 2016, Clinton won the popular vote in Colorado, so all nine of the state's electoral votes were supposed to go to her.

    But Baca, one of Colorado's electors, voted for Republican John Kasich. It was part of plan he hatched with other electors to try to prevent Mr. Trump from becoming president.

  • Micheal Baca:

    It was to find a more moderate — a moderate Republican. The popular vote winner of Colorado was Hillary Clinton. But the majority of people in Colorado did not want Donald Trump.

  • John Yang:

    Jason Harrow is Baca's attorney.

  • Jason Harrow:

    They were putting country over party. And there is a place for that. It's not to blow up the system. It's actually to further our constitutional democracy.

  • John Yang:

    Colorado invalidated Baca's vote and replaced him with an alternate, who did vote for Clinton.

  • Micheal Baca:

    Electors are supposed to go and vote. And when I attempted to go and exercise my right to vote in the Electoral College in 2016, I was denied that vote.

  • Former Vice President Joseph Biden:

    Colin Powell from the Commonwealth of Virginia has received three votes.

  • John Yang:

    As then Vice President Joe Biden announced the results, seven so-called faithless electors were successful in casting their ballots for other candidates.

    In Washington state, four of them were fined $1,000 each. They and Baca sued. Today, meeting once again by phone, the Supreme Court heard a pair of arguments on the constitutionality of state laws punishing faithless electors.

    Marcia Coyle is chief Washington correspondent for "The National Law Journal."

  • Marcia Coyle:

    The court has ruled way back in 1952 that states can require electors to pledge to support certain candidates or political party's candidates, but the court has never said whether the states can enforce pledges. It is an unprecedented question for them.

  • John Yang:

    But just months before the next presidential election, the stakes for the justices were clear. Justice Samuel Alito pressed Lawrence Lessig, the attorney for the Washington state electors.

  • Justice Samuel Alito:

    Those who disagree with your argument say that it would lead to chaos. Do you deny that that is a good possibility, if your argument prevails?

  • Lawrence Lessig:

    We deny it's a good possibility. We don't deny it's a possibility. We believe there are risks on either side. In the history of electors, there has been one elector, out of the 23,507 votes cast, who has switched parties against the majority party in a way that it could have mattered.

  • John Yang:

    Rick Hasen, an election law expert at U.C. Irvine Law School and author of "Election Meltdown," explained the potential risk.

  • Rick Hasen:

    These electors could be subject to pressure. They could be subject to bribes. They could vote in an independent way. And that would throw off the result. Imagine the election is very close, and it just takes one or two electors changing their views.

  • John Yang:

    During today's arguments, Washington solicitor general Noah Purcell defended his state's decision to fine faithless electors as a way to protect three million other voters.

  • Solicitor General Noah Purcell:

    Once the legislature has given power to vote to the public, the public now has a fundamental right to vote and have their votes counted equally, and — as this court has said in a number of cases.

    And so the legislature can't then override that vote after the fact. It would radically change how American presidential elections have always worked in our country.

  • John Yang:

    But Chief Justice John Roberts pressed Baca's attorney on what limits may be placed on an elector.

  • Chief Justice John Roberts:

    So, the elector can decide, I'm going to vote, I'm going to flip a coin, and however it comes out, that's how I'm going to vote?

  • Jason Harrow:

    Yes, Your Honor. That's the same discretion that U.S. senators have, representatives have, congressional electors have. These too are elected officials, and they have that same discretion.

  • Chief Justice John Roberts:

    Well, that sounds pretty limitless to me.

  • John Yang:

    Depending on how the justices rule, the Republicans and Democrats may do things differently this fall.

  • Rick Hasen:

    This is not an exaggeration, I expect there are going to be investigators investigating the lives of these electors to make sure that these are people who are those who would reliably vote for Joe Biden or Donald Trump.

  • John Yang:

    Presidential candidates and electors should have a better idea of their options before the party nominating conventions later this summer.

    For the "PBS NewsHour," I'm John Yang.

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