Supreme Court rules members of the Electoral College must be faithful – how that affects California

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“Go vote in November,” everyone tells you. “Vote because your vote will determine the next leader of the free world,” people say. But this is only partly true.

Voters do not elect the president and the vice president. Technically, voters vote for electors, members of the Electoral College who then vote for the president and vice president every four years in December. With the exceptions of Maine and Nebraska, which have a proportional system, electors vote for the presidential candidate who received the most votes in the state they represent. 

Each state has a different number of electors, which equals the total number of federal representatives that state has. In California, where we have 53 members of Congress, and two senators, we have 55 electors. In fact, we are at the top of the heap. Because we have more members of Congress than any other state, we also have more members of the Electoral College. 

It sounds like California, with our 55 electors, must play a key role in picking the next president of the United States. The answer is, not really. 

Here is the bad news for California voters. First, because California is not a so-called “swing state,” candidates largely ignore us. Second, thanks to how the Electoral College is structured, we have much less power in electing the next president than voters in less populous states. 

For instance, Wyoming has three members of the Electoral College and about 590,000 residents. California has more than 39 million residents and 55 electors. This means if you vote in California on Election Day, you have approximately 3.5 times less power to elect electors than you would if you voted in Wyoming. 

The Electoral College gives more voting power to citizens of smaller, typically less diverse, states. Put another way, the Electoral College disfavors the voting power of Californians. 

Imagine a scenario in which sometime on or after Election Day, the electors look at the results of how the states voted and say to themselves, “yuck.” “Yuck,” is of course a legal term that electors use to mean, “can’t we do anything about this?”

And that actually may be the point of the Electoral College, to save us from ourselves. The Founders created the Electoral College to, in part, act as a safety valve against an unruly mob of voters who might be taken by an unqualified demagogue. In practice, this rarely happens. The vast, vast majority of the time electors vote according to how the majority of voters in the state they represent vote. 

Despite the fact that electors rarely go rogue, 32 states and the District of Columbia, leaving nothing to chance, have implemented loyalty laws. These laws require that electors vote according to the popular vote of the state they represent, and if they don’t they may be penalized. 

The question before the U.S Supreme Court this term was whether these loyalty laws are Constitutional. Those challenging the laws argued that states lack the power to penalize faithless electors, and that electors must have some agency, or discretion, as to who they vote for. A unanimous court disagreed. 

Justice Elena Kagan, writing for the majority of the court, concluded that “(t)he Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee – and the state voters’ choice – for president,”

And therefore, if on or after Election Day, electors say a collective “yuck,” with respect to the presidential results, electors in the majority of states have no discretion to act on that. This again arguably hobbles California’s ability to play a larger role in presidential contests. 

If states could not implement loyalty laws for electors, one could envision a scenario in which electors secretly meet (presumably in a smoke-filled Zoom room) and decide they must do something to stop the results. If California had not voted for the electors’ preferred candidate, then all or just some of California’s 55 electors could sway the election. But as a result of the Supreme Court’s decision, there will be no (virtual) backroom deal among electors. 

Unfortunately for many Californians, the Electoral College is here to stay. And now, electors in the majority of states must rigidly adhere to the vote of the majority of those in the state they represent. This could embolden those who are pushing to abolish the Electoral College. 

For now, get ready to round up 2.5 of your friends to vote on Election Day. You’ll need them to equal the voting power of your cousin in Wyoming. 

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Jessica Levinson has also written about aging candidates during COVID-19 and Republicans versus the right to vote.