There are now 23 states asking the Supreme Court to answer a basic question about the process of electing the president: Can they bind a member of the Electoral College to vote for the state's popular vote winner?
A group of 22 states on Wednesday asked the court to take up a case involving a so-called faithless elector in Colorado, who was dismissed and replaced in 2016 after refusing to vote for Hilary Clinton even though she won the state's popular vote. The elector challenged his dismissal in a lawsuit, which a lower court allowed to move forward.
The brief from Colorado's allies argues the court should reverse that decision, effectively giving a green light for states to enforce laws that require an elector to cast their votes for the candidate who carries their state. Thirty-two states have such laws.
Rush is a professor of politics and law and the director for International Education at Washington and Lee University.
With the presidential election looming, worried observers of politics have already asked whether the Electoral College will again deliver a victory to the candidate with less than a majority of the popular vote.
This has happened in two of the last five presidential elections.
Critics like Vox's Ezra Klein contend that this phenomenon is not only undemocratic, but also politically biased, because Republicans were the beneficiaries of both of these Electoral College hiccups. "American politics is edging into an era of crisis," Klein writes.
But presidential elections – and the occasional hiccups like 2000 and 2016 – represent nothing less than the smooth working of the constitutional system's allocation of power among the states.
This story was updated Nov. 21 with additional information.
Colorado has become the second state to ask the Supreme Court to decide if states may legally bind their presidential electors to vote for the candidate who carried their state.
The issue of so-called faithless electors is the latest aspect of an increasingly heated debate about the virtues and flaws of the Electoral College that has blossomed, especially among progressive democracy reform advocates, now that two of the past five presidential winners (Donald Trump in 2016 and George W. Bush in 2000) got to the Oval Office despite losing the national popular vote.
Justice Ruth Bader Ginsburg, an icon of progressive democracy reformers, is throwing cold water one of their most ambitious wishes: Shuttering the Electoral College and electing presidents by national popular vote.
"It's largely a dream because our Constitution is … hard to amend," she told an audience Monday at the University of Chicago, the Chicago Sun-Times reported. "I know that from experience."
An alternative approach is to upend the system by having states commit their electors to supporting the national winner, not the winner of their states, but only once states controlling a majority of electoral votes (270) have done so. Such a compact has been joined by 15 states and Washington D.C., with 196 votes.
The 86-year-old justice, who revealed this summer she's been treated for pancreatic cancer, said this when asked how she'd encouraged those fighting to better democracy: "It's very hard to do anything as a loner, but if you get together with like-minded people, you can create a force for change. And if you look at things over the long haul, we have come a long way."