The Supreme Court will decide whether Electoral College voters have a constitutional right to cast ballots for candidates who didn’t win their state’s popular vote, the justices announced in an order on Friday.
The justices said they will hear two cases brought by Electoral College voters in Washington state and Colorado who refused to vote for Hillary Clinton in 2016 despite her wins in those states.
Like most states, Washington and Colorado require their electors to follow the will of their states’ voters. But those laws are now being challenged by Electoral College voters who argue that such laws are unconstitutional.
A decision in the matter is expected by the end of June, ahead of the U.S. presidential election in November. The cases are the latest in a string of high-profile disputes the top court is expected to resolve in a contentious election year.
Historically, the faithfulness of Electoral College voters has largely been a formality. In 2016, 10 out of the total 538 electors attempted to cast ballots out of line with their state’s popular vote. But attorneys on both sides of the issue urged the top court to resolve the constitutional question before a crisis emerges.
Larry Lessig, an attorney for the electors in Washington, wrote in court papers that a swing by 10 electors would have been enough to alter the results in five of 58 previous presidential races.
“This case gives the Court the rare opportunity to decide a constitutional question related to presidential selection in a non-emergency setting,” he wrote.
The Washington case was brought by three presidential electors who cast their ballots for Colin Powell, the former secretary of state under President George W. Bush. The electors were each fined $1,000 under state law, which they have said in court papers appears to be the first fine of its type in American history.
The Washington Supreme Court upheld the fines in an 8-1 vote that rejected the electors’ constitutional objections, including the claim that their First Amendment rights were violated.
The Colorado case was brought by Micheal Baca, who attempted to cast his vote for John Kasich, as well as two other electors, Polly Baca and Robert Nemanich, who objected to voting for Clinton but ultimately did so after trying and failing to get a court order blocking the state law that required it.
Colorado replaced Micheal Baca with another elector who voted for Clinton before he could cast his vote.
A federal appeals court based in Denver ruled 2-1 that electors do have a right to buck the popular vote. The court reasoned that under the Twelfth Amendment, which established modern voting procedures for president and vice president, electors are “free to vote as they choose.”
A number of the top Democrats running for president, including Sens. Bernie Sanders, I-Vt., Elizabeth Warren, D-Mass., and Amy Klobuchar, D-Minn., and former South Bend, Indiana, Mayor Pete Buttigieg, have advocated for eliminating the Electoral College.
President Donald Trump, who lost the popular vote to Clinton by 3 million votes, said in March that he used to support abolishing the Electoral College “but now realize the Electoral College is far better for the U.S.A.”