Senate decided oaths don’t matter. Supreme Court’s view might transform presidential races | Opinion

Do oaths matter?

It was the question I posed to my Law & Literature students on the first day of class this semester. My course begins with Sir Thomas More and the sanctity of the oath. He refused to swear false allegiance to King Henry VIII and, as a result, lost his head — literally.

Centuries later, oaths are back in the news. U.S. senators recently swore an oath to be impartial jurors, then walked to the Rotunda to announce the verdict in President Trump’s impeachment trial that they already had reached before hearing the evidence.

Less noticed was the announcement by the U.S. Supreme Court that it will decide a case this spring involving the Electoral College. Specifically, the case involves the so-called “faithless elector,” and it could change the way presidents are elected in this country.

Both developments raise the question: Do oaths matter? The Senate is unlikely to answer that question. The Supreme Court must.

No state has rocked 21st-century politics like my own state of Florida. Twice in 16 years the winner of the nationwide popular vote has fallen short of the required 270 Electoral College votes. Twice, a narrow victory in Florida has propelled the “loser” into the White House. Between the Republican-red north and Democratic-blue south lies a veritable sea of purple, Florida’s I-4 corridor—the 19-county, 132.3-mile swath from Gulf-side St. Petersburg to oceanside Daytona, arguably the most valuable political cache of swing voters in America.

Political consultants call it “America’s corridor of power,” paved with presidents made and contenders broken. It was the 6 million registered voters in the middle third of the peninsula that put Florida up for grabs in 2000, when Tim Russert famously predicted on his low-tech whiteboard that the election would come down to “Florida, Florida, Florida.” He proved prophetic. Florida’s 29 Electoral College votes put George W. Bush in the White House, the outcome determined by a few hundred “hanging chads” and the votes of five Republican-appointed Supreme Court Justices in Gore v. Bush.

Sixteen years later, it was the I-4 corridor that handed Florida, and the presidency, to Donald Trump. It is this same purple swath that has all eyes, again, on “Florida, Florida, Florida” for the 2020 election.

Could it happen again? The nation is politically polarized, and Florida is polarization on steroids. The squeaker of 2000 was only the first of three presidential elections this century in which the margin of victory in Florida was 1.2 percent or less. What if 2020 is the fourth time in 20 years where a candidate wins the nationwide popular vote decisively but loses all 29 of Florida’s Electoral College votes for failing — just barely —to carry a majority in Florida? Will the nation of over a hundred million voters accept that, under the current Electoral College System and our current socio-political makeup, the presidency is effectively decided by a few thousand swing votes in Central Florida?

Or will it be chaos?

The Supreme Court may finally settle one issue in this debate. The case involves electors in Colorado and Washington who in 2016 refused to cast their ballots for Hillary Clinton, the winner of the statewide popular vote. Those two states, like Florida and the majority of states, require electors to swear an oath that they will cast their ballot for the statewide winner when the Electoral College convenes in the December following the November election.

The Supreme Court decided in 1952 that states could lawfully require members of the Electoral College to swear such an oath. What it has never decided — and the constitutional issue now before the court — is whether states can actually enforce those oaths against the “faithless elector.”

There will be arguments on both sides. For anyone who knows more about Alexander Hamilton than what they learned in the Broadway musical, it, of course, is obvious that members of the Electoral College are constitutionally entitled to cast their ballot any way they wish. Such an oath violates the U.S. Constitution. For others — perhaps even some in the White House — beheading would be a punishment too lenient for a faithless elector.

We will know more when the Supreme Court decides the case this spring. I swear.

James Grippando is a New York Times bestselling author and the winner of the Harper Lee Prize for legal fiction. He teaches The Law & Lawyers in Modern Literature at the University of Miami School of Law.

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