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Here’s Why SCOTUS Agreed to Telephonic Arguments in Electoral College Cases

Now that we’ve all moved seamlessly clunkily toward an all-virtual business world, we may be tempted to assume that decisions to go electronic are always motivated by a simple desire to use our quaran-time efficiently.  Sometimes, though, there’s more to it than that.

The Supreme Court of the United States has announced an unprecedented use of technology in its courtroom:  May’s oral arguments will be heard using Morse code and a telegrapher telephonically. The Supreme Court has been closed to the public since March 12 because of the widespread impact of the coronavirus outbreak. The justices have since had to adjust to working remotely.

Of course, all the cases the SCOTUS agrees to hear are important. All entail serious consequences for the litigants themselves, and some promise to settle decades-old legal questions and inter-circuit disputes. One case on the high court’s docket, however, comes with something of an implicit deadline for the court. The court needs to decide Colorado v. Baca now – or risk becoming embroiled in a political war later.

In Colorado v. Baca, The State of Colorado is appealing its Tenth Circuit Court of Appeals loss in the case over Micheal Baca’s “faithless electing.” Baca was a Democratic elector in Colorado during the 2016 presidential election. Baca cast his ballot for Ohio’s then-Gov. John Kasich (R), despite Hillary Clinton’s having won Colorado’s popular vote. Baca sued after he was removed as an elector. He was replaced with a Clinton voter by Colorado’s Secretary of State.

The Tenth Circuit upheld Baca’s right to vote his conscience; Judge Carolyn McHugh reasoned that the Constitution’s use of the word “vote” implied an expectation of independent judgment on the part of electors.

Baca’s case raises the issue of the true nature of the electoral college: Are the presidential electors merely proxies for the voters of their states, or do they have the right to exercise their independent judgment when casting their votes?

Indeed, students of history (and, in particular, critics of the electoral college) will remember that the Founding Fathers weren’t keen on the idea that every farmer in the countryside should have be able to cast his vote without some supervision. There was also a concern that allowing a straight popular vote would give the more densely populated states an unfair advantage in presidential elections. The electoral college was set up as a buffer to ensure that America did not become a direct democracy.

From its inception, the electoral college has been controversial. Debates generally rage over whether the institution itself is useful or whether it’s an arcane proxy system that should go the way of quill pens and parchment. Until 2016, however, there was little serious conflict over what was actually expected of presidential electors.

With the Trump-Clinton election however, everything changed. Several groups of “faithless electors” emerged, hoping to use their authority as presidential electors to influence the election one way or another. And the key question – what exactly is the nature and scope of that authority – will not be a simple one to answer. Election law varies from state to state; accordingly, the process by which presidential electors cast their votes also varies. Federal courts, too, are split over whether presidential electors are “state officers” or not. As a result, the dispute about Micheal Baca’s authority to cast his own vote raises not only concerns of constitutional interpretation but also issues of state sovereignty.

Now that faithless electing has become a thing, it’s not likely to disappear in the 2020 election. If you remember back to November 2016, there was a virtual frenzy over the idea that faithless electing might save America from a Trump presidency.

The near-certainty that there will be more faithless-elector litigation in the future isn’t lost on the Supreme Court. The justices know they will eventually need to weigh in. If there’s one thing we know about them, it’s that they would choose to do so apolitically. That means it has to get done now – when the issue is intellectual and abstract – and not tied to the outcome of a presidential election. In short, SCOTUS can’t afford to wait until the COVID-19 crisis is behind us. That’s why they’re allowing the petitioner and the respondent to “phone it in,” if you will, on a very important question.

Speaking of sidestepping cases with political fallout, Justice Sonia Sotomayor recused herself from the Baca case on the basis that she had a preexisting friendship with one of the litigants. The justice, however, will still be involved with another upcoming faithless elector caseChiafalo v. Washington. That case is also on the oral-arguments-by-phone list.

While the justices prepare to hear arguments in cases with the potential to affect all American elections to come, it will be doing so far more publicly than usual. “The Court anticipates providing a live audio feed of these arguments to news media,” a press release from the court said Monday.

[image via Fred Schilling/Supreme Court Curator’s Office]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos