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.
MICHAEL BACA, 2016 Elector in Colorado: 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 Michael 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.
MICHAEL 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, Attorney for Electors: 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.
MICHAEL 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.
JOSEPH BIDEN (D), Presidential Candidate: 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 National Law Journal": 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.
SAMUEL ALITO, U.S. Supreme Court Associate Justice: 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, Attorney for the Electors: 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, University of California, Irvine: 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.
NOAH PURCELL, Washington State Solicitor General: 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.
JOHN ROBERTS, Chief Justice of the U.S. Supreme Court: 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.
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.