Supreme Court Upholds “Faithful Elector” Laws

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PRESS RELEASE
July 6, 2020
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Supreme Court Upholds “Faithful Elector” Laws

Supreme Court Upholds “Faithful Elector” Laws

Today, the U.S. Supreme Court upheld Colorado’s “faithful elector” law as constitutional. Colorado, like several other states, has adopted a faithful elector law, which provides a mechanism to ensure that Presidential Electors vote in accordance with the popular vote in the state. The Colorado law was passed to prevent the chaos that would ensue if a faithless elector changed the outcome of a presidential election by casting a vote contrary to the popular vote in her state.

In 2016, a Colorado Presidential Elector attempted to cast his ballot for John Kasich, instead of Hillary Clinton, who had won Colorado’s popular vote in the 2016 presidential election. This “faithless” Presidential Elector was removed under Colorado’s faithless elector law and his replacement voted for Hillary Clinton. He later filed suit in federal court to challenge the constitutionality of Colorado’s law.

The Court today upheld the Colorado law in a per curiam decision based on its decision, also today, that the State of Washington could penalize a Presidential Elector who violated his pledge to vote for the Presidential candidate who won the vote and thus voted contrary to the will of the people. The Court held that the Constitution authorizes states to appoint their Electors in the “manner” the state legislature directs. The Court reasoned that this broad authority is supported by both federal statute and case precedent, which supports the principle that the states are free to regulate electors until their ballot is formally cast and that an elector does not have absolute freedom to choose the candidate of her individual choice, if pledged otherwise under state law.

The Uniform Law Commission (ULC) had filed an amicus curiae (friend of the court) brief in support of the Colorado law, authored by The Bopp Law Firm.  The ULC has approved the Uniform Faithful Presidential Electors Act (UFPEA), which operates just like the Colorado law upheld by the U.S. Supreme Court.

The ULC amicus brief emphasized the constitutional and statutory framework that supports both the Colorado law and its own similar uniform law, the UFPEA. The ULC also highlighted the public policy arguments supporting these laws. First among these is the states’ interests in bolstering individual political empowerment by laws requiring the execution of the will of the people’s votes in each state. Security is another vital public interest supporting these laws — federalism and the decentralization of presidential elections, by virtue of broad state control over the process, protects our presidential election system from interference. 

James Bopp, Jr. of The Bopp Law Firm, PC, a ULC Commissioner and a member of the ULC Drafting Committee that drafted the UFPEA and lead counsel for amicus curie ULC, says: “We are pleased by the Court’s recognition of bedrock principles concerning federalism. Today’s decision confirms that the power to regulate and protect the presidential election process in this nation is best left to the states. It is critical that the voters can trust that the will of the majority of voters in the state will be carried out when the Electors cast their ballots for President. If a faithless elector actually determined the outcome of a presidential election that was contrary to the will of the people, our republic would suffer a constitutional crisis the likes of which we have never seen before. The states’ critical role in our democracy has again been protected by the Supreme Court.”

The ULC is made up of approximately 425 Commissioners, appointed by state governments, representing each state, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands. The ULC’s purpose is to provide non-partisan, well-conceived, and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. The ULC drafts and approves “uniform laws” dealing with a wide variety of legal issues, which individual states can then enact, either in full or as modified.

The case is Chiafalo v. Washington, upon which Colorado Department of State v. Baca is based, and it is available here. The ULC amicus curiae brief is available here at www.bopplaw.com.

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