Writing for a unanimous Supreme Court in today’s Chiafalo v. Washington, Justice Kagan upheld a state’s power to not just replace — but also to punish — “faithless electors.” Such electors refuse to cast their Electoral College ballots for the presidential candidate the voters of their state selected.
The Electoral College is, of course, an anti-majoritarian abomination designed over 200 years ago to, among other things, placate white men who owned other human beings. See, e.g., Juan F. Perea, Echoes of Slavery II: How Slavery’s Legacy Distorts Democracy, 51 U.C. Davis L. Rev. 1081 (2018). Justice Kagan’s opinion notes some framers’ argument that the Electoral College would “entrust[] the Presidency to ‘men most capable of analyzing the qualities’ needed for the office,” and “would ‘be composed of the most enlightened and respectable citizens,’ whose choices would reflect ‘discretion and discernment.'” Chiafalo, Slip. Op. at 12. …