WASHINGTON — On Dec. 19, 2016, a little more than a month after the presidential election, members of the Electoral College gathered around the nation to cast their votes. Ten of them went rogue.
A swing by that number of electors would have been enough to change the outcomes in five of the previous 58 presidential elections, according to a petition filed last week in the Supreme Court. In the 2000 election, after an assist from the Supreme Court, George W. Bush beat Al Gore by just five electoral votes.
The petition asked the justices to decide whether “faithless electors” were free to disregard pledges they made to vote for their own parties’ candidates. It urged the court to act quickly. “This case permits the court to issue a decision outside of the white-hot scrutiny of a contested presidential election,” the petition said.
Deciding the issue in the context of an actual election could do lasting damage to the Supreme Court, said Lawrence Lessig, a law professor at Harvard who filed the petition on behalf of three Democratic electors from Washington State who were fined $1,000 each for casting their electoral votes for Colin L. Powell rather than for Hillary Clinton.
A ruling that tipped an election to one or another candidate could not but look political, Professor Lessig said. “It would be disastrous for the institution,” he said of the court, “if they had to decide it in the middle of a presidential election.”
The Washington State Supreme Court upheld the fines in May, saying that the Constitution allows states to insist that electors vote for their parties’ candidates.
In dissent, Justice Steven C. Gonzalez disagreed. “The Constitution provides the state only with the power to appoint,” he wrote, “leaving the electors with the discretion to vote their conscience.”
Three months later, the United States Court of Appeals for the Tenth Circuit, in Denver, rejected the Washington State Supreme Court’s reasoning. It said that Colorado had been wrong to discard a vote from a Democratic elector who had wanted to cast a ballot for Gov. John Kasich of Ohio.
“Electors, once appointed, are free to vote as they choose,” Judge Carolyn B. McHugh wrote for the majority of a divided three-judge panel. “While the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote or to appoint a new elector to cast a replacement vote.”
Such sharp disagreements in the lower courts make Supreme Court review more likely. So does the importance of the issue: It is hardly far-fetched that the next presidential election could turn on the votes of faithless electors.
Two things are reasonably clear. The first is that the framers of the Constitution and the language they used seemed to contemplate that electors would use independent judgment.
The second is that over time people have come to assume that electors are meant to vote for their parties’ candidates.
An 1892 Supreme Court decision captured this tension. “Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive,” Chief Justice Melville Fuller wrote. Over time, he added, “the original expectation may be said to have been frustrated.”
Alexander Hamilton described that original expectation in the Federalist Papers. “Men chosen by the people for the special purpose” of selecting the president, he wrote, “will be most likely to possess the information and discernment requisite to such complicated investigations.”
The Supreme Court these days is generally inclined to honor the original meaning of the Constitution, and the Tenth Circuit made a strong case that its language supports elector independence. The words of the relevant provisions, including “elector,” “vote” and “ballot,” Judge McHugh wrote, “have a common theme: They all imply the right to make a choice or voice an individual opinion.”
On election night in 2016, the electoral vote was expected to be 306 for Donald J. Trump and 232 for Mrs. Clinton. In the end, though, it was 304 to 227.
Seven electors succeeded in voting for other candidates. A fourth Democratic elector in Washington voted for Faith Spotted Eagle, and a Democratic elector in Hawaii voted for Senator Bernie Sanders of Vermont. Republican electors in Texas voted for Mr. Kasich and Ron Paul, a former representative of Texas.
Three more Democratic electors, in Colorado, Maine and Minnesota, tried to vote for candidates other than Mrs. Clinton. Two were replaced, and a third eventually came around.
The number of faithless votes was the largest in history, but the phenomenon was not particularly unusual. “Congress has accepted the vote of every vote contrary to a pledge or expectation in the nation’s history that has been transmitted to it — a total of more than 150 votes across 20 different elections from 1796 to 2016,” the petition filed last week said, citing data from FairVote, a nonpartisan voting rights advocacy group.
Congress has only once debated the question, when some lawmakers objected in 1969 to counting a Republican elector’s vote for George C. Wallace after Richard M. Nixon won the popular vote in the elector’s state. Both houses rejected the objection, and the vote stood.
Professor Lessig, the lawyer for the Washington State electors, said a decision in their favor could help focus public attention on the shortcomings of the Electoral College in reflecting the popular will. One response, he said, is the National Popular Vote plan, under which states agree to grant their electoral votes to the candidate who gets the most votes nationwide.
“It could also convince both sides that it is finally time to step up and modify the Constitution to address this underlying problem,” he said. One possibility, he said, is a constitutional amendment requiring a proportional allocation of electoral votes at the state level.
The key point for now, Professor Lessig said, is to have a definitive answer on elector independence before the justices can know which candidate might benefit from their ruling.
“Whatever way you resolve it,” he said, “it should be resolved.”