Today we need to discuss the Chiafalo v. Washington, 591 U.S. _ (2020) ruling, and its (potential) unintended consequences. The ABA Journal (link above) notes earlier this year that “A 2020 U.S. Supreme Court decision on faithless electors appears to allow state legislatures to pursue a dangerous strategy for overturning election results…”

Those who read my posts–and my thrillers–know that I have long regarded the Electoral College as an outmoded, arcane system for electing a president; and one that is ripe for mischief from bad actors that only amplifies the anti-democratic underpinnings of our system. Those who claim to defend the Electoral College often say that they are upholding the Founders’ vision, when in fact they are working to exploit its loopholes and undermine faith in its legitimacy for their own ends.

Chiafalo v Washington was a unanimous Supreme Court decision “that states have the ability to enforce an elector’s pledge in presidential elections.” It is the suit that arose from the Faithless Electors lawsuit after the 2016 presidential election. The ABA article quotes a NY Times op-ed by Lawrence Lessig, a professor at Harvard Law School, and Matthew A. Seligman, a fellow at the Constitutional Law Center at Stanford Law School.

In their op-ed, Lessig and Seligman’s describe an all-too possible scenario:
“Charges of fraud cloud a recount. Leaders in the state legislature challenge the presumptive result. In response to those challenges, the legislature votes to direct its electors to cast their ballots for the candidate who presumptively lost but whom the legislature prefers. Any elector voting contrary to the legislature’s rule would be removed and replaced with an elector who complied. This is a critical innovation in the science of stealing a presidential election.” [Emphasis mine]

Lessig and Seligman go on to say: “Congress could amend the federal law governing electoral votes by declaring that any post-election change of the results by a state legislature would not count as votes ‘regularly given,’” they wrote. “States could cement the requirement that electors are to follow the people’s will. Neither path is assured, but we are certain of this: It is a rocky road ahead.” As currently constituted, only the Senate would be likely to take this up. The House has a Trump-controlled majority.(And it is Trump-controlled. As we saw in the failure of the bipartisan Immigration Reform Bill after Trump torpedoed it. Brookings has an explainer “for the perplexed,” though in the end, it’s not hard to figure out.)

My first novel, Faithless Elector came out in early 2016 and presaged some of the insanity surrounding the election. But the third book, Emergency Powers may prove to be more on point (which does not make me feel good, somehow).

Voting is our chance to participate and to hold our elected officials to some sort of accountability. Is it perfect? Hardly, but we may get a lesson in just how bad the alternative is if we don’t vote–all of us. Because the last three years or more have seen a coordinated effort to undercut that chance to make outrvoices heard through bad faith laws, official skullduggery and lawsuits. So much so, that the GOP candidate, Donald Trump, can say, as he did on July 28 of this year, that we “won’t have to vote anymore…”

The election is roughly 3 months from now. The forces that seek to steal our votes have been busy for years. Perhaps knowing that a majority does not support their policies, the GOP has undertaken to shrink the number of eligible voters and (potentially) to usurp the role of Electors.

I’ll talk more about the lawsuits and gerrymandering that’s still going on–and the Supreme Court’s role in it–in a follow-up post.

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James McCrone is the author of the Imogen Trager political suspense-thrillers Faithless Elector, Dark Network , and Emergency Powers–noir tales about a stolen presidency, a conspiracy, and a nation on edge. Bastard Verdict, his fourth novel, is about a conspiracy surrounding a second Scottish Independence referendum. 

All books are available on BookShop.org, IndyBound.org, Barnes & Noble, your local bookshop, and Amazon. eBooks are available in multiple formats including Apple, Kobo, Nook and Kindle.

He’s a member of Mystery Writers of America, Int’l Assoc. of Crime Writers, and he’s the current president of the Delaware Valley chapter of Sisters in Crime. He lives in Philadelphia. James has an MFA from the University of Washington in Seattle. His current, work-in-progress is a mystery-thriller set in Oregon’s wine country…A (pinot) Noir, called Witness Tree.

For a full list of appearances and readings, make sure to check out his Events/About page. And follow this blog!

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