• Salient Strategies

SCOTUS Election Decisions

Americans passionately disagree about many things. But they are largely united in their disdain for robocalls." - Supreme Court Justice Brett Kavanaugh

Last week, the Supreme Court announced two additional landmark decisions to add to the recent spate of highly publicized opinions on immigration, employment rights, and private schools. The two opinions relate directly to U.S. elections by settling long-standing debates on political robocalls and so-called "faithless electors".


In the first case, the Supreme Court took on a suit challenging the constitutionality of using robocalls. The Telephone Consumer Protection Act of 1991 limits the use of autodialed calls or texts and prerecorded voice calls and the FCC promulgated rules to apply the TCPA to political campaign-related calls or texts. The restrictions have historically varied based on whether the message is delivered to a landline, cell phone, or certain protected phone lines (toll-free, emergency, etc...).

A group of political and polling organizations sued to say that the robocall ban violated free speech rights under the First Amendment. The FCC then weighed in and argued that the court should uphold the autodial ban as well as the exemption that allows automated calls for the collection of money owed to the government (including student loans and mortgage debts).

By a large margin (7-2) the Supreme Court ruled that the TCPA is constitutional and went further to rule against the FCC by saying that the government debt collection exemption was unconstitutional "because it favored government speech over political speech by private entities without sufficient justification."

This is a net-win for everyone except political campaigns. They will have to get more creative in how they communicate with the public, but luckily for us all, this should eventually decrease the total number of robocalls that blow up our cellphones every week.

Faithless Electors

The issue of so-called "faithless electors", or Electoral College participants who do not vote along with their state's popular vote candidate of choice, became big news during the 2016 presidential election. In that year, a record seven electors chose not to support the candidate their state elected, five of which abandoned Hillary Clinton and two abandoned Donald Trump.

This led to a lawsuit out of Washington state in which Washington required Electoral College representatives to follow the popular vote of the state in casting their vote. In that case, three electors voted for Colin Powell instead of Hillary Clinton, and were subsequently fined $1,000 each.

Last week, Justice Elena Kagan wrote in the majority decision that "[n]othing in the Constitution expressly prohibits States from taking away presidential electors' voting discretion...." Justice Kagan also stated that because the framers did not explicitly include autonomy in outlining the role of electors, much was left to the states to decide and that it was not the court's role to intervene.

Thirty-two states and the District of Columbia already have laws requiring their electors to abide by the popular vote outcome, but only 11 of those states have laws allowing them to nullify faithless electors' votes or remove them.

As noted by the Brookings Institute in its analysis:

In the 18 states currently without faithless elector laws, the National Popular Vote Interstate Compact would operate in a manner identical to the system that they have been using for over 200 years. In these states (which currently use the state-by-state winner-take-all method of awarding electoral votes), the presidential electors are chosen by the political party whose presidential candidate receives the most popular votes inside the state, and there are no additional requirements placed upon the elector.

The National Popular Vote Interstate Compact is a measure which has currently passed in 15 states and the District of Columbia, totaling 196 electoral votes which says:

States that combine for at least 270 electoral votes agree to award their electors to the presidential candidate who wins the most individual votes across the nation.

So while this is not currently in place across all states, or even all 270 electoral votes needed to secure the White House, it is in place for a good majority of the votes. Now, even if a state is not included in the compact, the electors will be bound by state law if it requires the elector to fall in line with the popular vote candidate of choice.

Keep in mind, however, that these faithless electors have never really had a significant impact on the outcome of a presidential election. In fact, over the course of 58 presidential elections dating back to 1789, there has only been one single vote by an elector in 1796 in which he actually thought his faithless vote would be consequential to the outcome of the election. All of the rest, including those in 2016, have been symbolic in nature. But the unanimous decision by the Supreme Court is still a symbolic, if not overtly important, one to demonstrate states' rights in policing their own electors.

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