Around 20 states also have laws to replace faithless electors or penalize them for violating their pledge. The Supreme Court upheld a faithful elector requirement in These decisions, though, hardly ensure smooth faithless-elector sailing in What could go wrong? Plenty if there is no clear-cut winner. The presence of a highly polarized electorate and an unconventional president have given rise to many scenarios that take the election past November and into the House of Representatives.
Supreme Court precedents are subject to interpretation, and government officials might try to settle the election before judicial processes conclude. Any of these dates could be faithless elector flashpoints. According to various scenarios , however, leaders of several swing-state, Republican-majority legislatures, using their federal constitutional authority, might appoint separate slates of electors, thereby setting up conflicts with the presumptively faithful electors certified by state executive authorities.
This could happen in key states like Pennsylvania, where the governor is a Democrat but the legislature is controlled by Republicans. Legislatures might claim, for example, a fraud-riven popular vote that renders the state-certified electors unrepresentative of the legitimate popular vote. Or they might claim that the vote count is proceeding too slowly to allow the state to meet the December deadlines. Court battles would no doubt ensue—see Bush v.
Gore In an Electoral College blowout, faithless electors will not matter. There were two cases at the Supreme Court this term that raised the faithless elector problem: one out of Colorado and the other out of Washington State. In the Colorado case, a federal appeals court ruled in favor of the faithless electors. Supreme Court took both cases to resolve the difference. The Washington law at issue allowed the state to punish or remove faithless electors. Thirty-two states and the District of Columbia including my home state of Florida have such laws, which are now confirmed as constitutional.
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