Listen live: Supreme Court hears arguments over ‘faithless’ Electoral College voters in dispute with 2020 implications


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The Supreme Court on Wednesday will hear two cases over the Electoral College that could affect the outcome of the 2020 presidential election. 

The cases concern whether voters in the Electoral College, the body that officially elects the U.S. president, have a constitutional right to buck the will of their state popular vote.

They were brought by Electoral College voters in Washington state and Colorado who refused to back Democrat Hillary Clinton in 2016, despite her wins in those states. Both states, and 30 others, have laws that require electors to vote for their pledged candidate. 

While those electors did not ultimately affect the results of the 2016 election, it is possible that so-called faithless electors could flip the result of a presidential race.

A swing of just 10 electors would have been enough to alter the results of five previous presidential races, according to Larry Lessig, an attorney for the electors in Washington.

Lessig urged the court to hear the case before it was forced to do so in an emergency — such as if the race between President Donald Trump and apparent Democratic nominee Joe Biden were to be contested. The justices agreed to do so in January. 

Arguments in the cases will be conducted by phone and streamed live to the public, a result of health precautions taken in response to the coronavirus.

The cases are scheduled to be the last carried out in the new virtual format, which so far has been conducted largely without a hitch. The two cases are also expected to be the last of the court’s term, which began in October. Decisions are expected over the summer.  

Ahead of arguments, it’s not clear how the court is likely to come down on the issue. Courts in Washington and Colorado have come down on opposite sides. 

In Washington, the state Supreme Court upheld $1,000 fines on three Democratic electors who cast their ballots in an unsuccessful bid to get electors for President Donald Trump to also break from their pledges, and keep him from winning the election. According to the electors, those fines were the first of their type in U.S. history. 

In Colorado, the 10th U.S. Circuit Court of Appeals came down the other way. A panel of the appeals court ruled 2-1 in favor of elector Micheal Baca, who attempted to cast his vote for former Ohio Gov. John Kasich, a Republican, and two other electors who objected to voting for Clinton. Baca was ultimately replaced before he could cast his vote. 

The 10th Circuit reasoned that under the Constitution’s 12th Amendment, electors are “free to vote as they choose.” 

In a brief submitted with the justices, the Republican National Committee said it sided with the states. The RNC said the electors “intended to sow chaos” and warned them not to “embrace the Electors’ brand of constitutional anarchism.” 

Forty-five U.S. states also urged the court to reject the “inherently undemocratic and chaotic nature of an unbridled electoral college.” 

“Given that state sovereignty is integral to our federal system, and states are central to the role and function of the electoral college under the Constitution, it seems axiomatic that if the framers had wanted to limit state influence over electoral balloting and allotting electoral votes they would have done so explicitly,” the states, led by South Dakota, wrote in a brief

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