New York is one of some 20 states that does not by state statute bind its electors to vote for the presidential candidate who wins the states popular vote (There is a lower court case some 90 years ago of dubious authority that is relevant to this issue.). New York’s presidential electors are, therefore, free, as a matter of state law, to vote for anyone. As Justice Robert H. Jackson famously observed in his dissent in Ray v. Blair, 343 U.S. 214 (1952), this is exactly what Framers intended. Ray itself is the only Supreme Court case ever to deal with this issue, and Justice Reed’s opinion leaves the question of binding up to a political party mechanism.

The Supreme Court heard arguments on May 12. The case from a Colorado federal circuit court in scholarly and thoughtful opinion held that a Colorado state law binding them was unconstitutional. In the case from the Washington State Supreme Court, the court sustained a state law penalty on an elector who did not vote for the candidate who won the state’s popular vote.