Under Monday’s unanimous Supreme Court decision in Chiafalo v. Washington, states may remove or sanction members of the Electoral College if those electors go rogue and defy the will of the state’s voters.

The case arose out of a peculiar effort by a handful of Democratic members of the Electoral College to deny the presidency to Donald Trump. Three members of the Electoral College from the state of Washington cast electoral votes for former Secretary of State Colin Powell, rather than Democratic presidential candidate Hillary Clinton, in the hope that a critical mass of electors from other states would join them in electing a Republican other than Trump.

It didn’t work, and these three “faithless” electors were fined $1,000 each for their trouble.

The core question in Chiafalo is whether states may impose such a sanction on “faithless electors” — electors who vote for someone other than the winner of their state’s popular election for the president. (Two states, Maine and Nebraska, allocate some electoral votes to the winners of individual congressional districts.)

The idea that individual electors may behave faithlessly received bipartisan opposition. Both the Republican National Committee and the Colorado Democratic Party filed briefs urging the Supreme Court to rule against faithless electors. And the decision was ultimately unanimous, although two justices, Clarence Thomas and Neil Gorsuch, disagreed with the reasoning of Justice Elena Kagan’s majority opinion.

In a statement released after Chiafalo was handed down, Paul Smith, a lawyer with the Campaign Legal Center, warned that a contrary ruling could have led to corruption by electors because there are “no federal ethics or transparency laws for presidential electors.” An elector could conceivably sell their vote and the public would have no way to learn about it.

Thirty-two states and the District of Columbia have laws requiring members of the Electoral College to pledge to support the winner of the popular election, and the Supreme Court established in Ray v. Blair (1952) that such pledges are permissible. Fifteen states, however, do more than merely require an elector to make a pledge. They also enforce that pledge by either fining faithless electors or removing those electors and replacing them with someone who will honor the pledge.

The crux of Justice Kagan’s majority opinion is that “the power to appoint an elector (in any manner) includes power to condition his appointment — that is, to say what the elector must do for the appointment to take effect.” That is, a state may tell an elector that they must vote for a particular individual as a condition of being appointed to the Electoral College.

The Constitution gives states broad authority to appoint presidential electors

Every state uses some form of popular election to choose members of the Electoral College, and they have done so for quite a while. By 1832, every state but South Carolina used a popular election to select electors, and South Carolina came around in the 1860s.

But the Constitution does not actually mandate a popular vote. Instead, it provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” Thus, a state legislature could theoretically draw the names of electors out of a hat.

Thus, as Kagan explains, a state may impose any number of conditions on individuals hoping to join the Electoral College. It may insist “that an elector live in the State or qualify as a regular voter during the relevant time period.” It may require electors to pledge their vote to a certain candidate. And “so long as nothing else in the Constitution poses an obstacle” — a state cannot refuse to appoint African Americans as electors, for example, because that would violate the Constitution’s safeguards against race discrimination — “a State can add, as Washington did, an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty.”

The faithless electors argued that the text of the 12th Amendment, which provides that electors shall “vote” by “ballot,” implies that those electors must exercise some choice in deciding how to cast that ballot. But the Court rejects this reading of the Constitution’s text.

Among other things, Kagan notes that it’s not uncommon for candidates to run unopposed for office, especially in down-ballot races. Yet we still think of someone who votes for such a candidate as casting a “vote” or a “ballot” — even though they had no meaningful choice.

The history of American elections undercuts the faithless electors’ argument

Kagan’s opinion also relies on the history of American presidential elections. As she notes, quoting from a 1929 Supreme Court decision, “‘long settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions.’”

That is, if the country has consistently run elections in a particular way over the course of many decades, courts should be reluctant to overturn that settled practice.

And there is a wealth of historical evidence showing that the United States rejected the idea that electors should exercise independent judgment very early in our nation’s history. In the very first contested election — the 1796 election between Federalist John Adams and Republican Thomas Jefferson — “would-be electors declared themselves for one or the other party’s presidential candidate,” Kagan writes.

By 1833, Justice Joseph Story wrote that “‘the electors are now chosen wholly with reference to particular candidates,’ having either ‘silently’ or ‘publicly pledge[d]’ how they will vote.” He added that if an elector exercised “independent judgment,” then this act “would be treated as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.”

In total, Kagan notes, only 180 faithless electoral votes have been cast in American history, out of more than 23,000 total votes cast. And a third of these were cast in the 1872 election, “when the Democratic Party’s nominee (Horace Greeley) died just after Election Day.” Setting aside the 1872 election, “faithless votes represent just one-half of one percent of the total.”

This history, combined with Kagan’s textual analysis, is sufficient reason to allow states to sanction faithless electors.

So the upshot of Chiafalo is that, while the Electoral College may still hand the presidency to the loser of the national popular vote, states can prevent individual electors from changing the result of a presidential election.

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Presidents tend to offer messages of national unity and optimism on Independence Day. But this weekend, President Donald Trump marked the occasion with a pair of speeches in which he described himself as presiding over a cultural civil war against an insurgent left — and promised to vanquish those on the other side of that war through aggressive use of law enforcement.

In a speech at Mount Rushmore on Friday, Trump warned of a “far-left fascism” that is part of a “merciless campaign to wipe out our history, defame our heroes, erase our values, and indoctrinate our children.” As the crowd before him shouted, “Four more years,” the president boasted about deploying federal law enforcement to protect American monuments, a number of which have been pulled down or criticized by antiracist protesters in recent weeks for commemorating historical figures who supported slavery, white supremacy, or colonialism.

In his “Salute to America” address on Saturday in Washington, DC, Trump emphasized this message, and proclaimed that he was “defeating the radical left, the Marxists, the anarchists, the agitators, the looters, and people who, in many instances, have absolutely no clue what they are doing,” while pledging to “safeguard our values.”

“Such rhetoric is designed to inflame and divide the public, not unite and celebrate, which is the goal of most presidents’ Independence Day speeches,” George Edwards III, a scholar of the presidency and professor emeritus at Texas A&M University, told me. “There is little doubt that the president is trying to energize his base in anticipation of the November election.”

Trump’s descriptions of the rise of an extremist left — which were often exaggerated or false in their characterizations — are inflammatory in part because they rely on a narrow, nationalistic, and racialized definition of “our values” that amounts to a sweeping rejection of the idea that America’s history of slavery and white supremacy should be questioned. And in framing the debate over the monuments this way, the president revived the racialized nostalgia politics that animated his 2016 strategy for mobilizing Republican voters.

Although that proved a successful strategy during that election, there are reasons to be doubtful that his tack of fomenting a culture war will in fact galvanize his base in the way he hopes. Chief among them are that his presidency has been engulfed by crises in the form of an out-of-control pandemic, a historic recession and a fiery national debate over racism.

Polling indicates that the public — including many Republicans — is broadly sympathetic to the protests and doesn’t buy into the picture of anti-American chaos that Trump has been trying to paint.

For instance, a Washington Post-Schar School poll in June found that most Republicans supported protests that emerged after Floyd’s death. And Trump is losing the support of crucial parts of his political base, like older voters and white voters, as the coronavirus wreaks havoc on people’s health, mobility, income, and wealth. These factors likely explain much of why Trump is the worst-polling presidential incumbent at this point in the race in nearly three decades.

In other words, the crises Trump faces suggest he needs to try a new approach to appealing to the public if he wants to have a decent shot at winning the 2020 election. But Trump is showing an inability, or at least a reluctance, to adapt to changing times, appearing eager to delve even further into divisive culture wars — and to continue deploying white identity politics and racism as his weapons of choice.

Trump thinks talking about statues is his path to victory

In his speeches this weekend, Trump positioned himself as a guardian of American identity, depicting protests against police brutality and racism — which have slowed significantly in recent weeks, and have been largely peaceful — in paranoid and cartoonish terms as a “fascist” threat to the republic.

It should be noted that Trump’s claims of the existence of “far-left fascism” are fundamentally incoherent: fascism is a right-wing form of ultranationalism calling for a rebirth of a nation or race, and that has nothing to do with liberal and left-wing calls for an end to police brutality and racism. But that didn’t stop Trump from making it the central message of his speeches, which aimed to sensationalize the issue of protests and statue-toppling.

Speaking at Mount Rushmore, amid peaceful protests led by members of the Sioux Nation meant to underscore the fact the monument was built on stolen and sacred land, Trump promised that the South Dakota monument “will never be desecrated.” And he went on to describe the ongoing re-evaluation of public symbols of racism in American life as a threat to civilization.

“Our nation is witnessing a merciless campaign to wipe out our history, defame our heroes, erase our values, and indoctrinate our children,” he said. “Angry mobs are trying to tear down statues of our founders, deface our most sacred memorials, and unleash a wave of violent crime in our cities. Many of these people have no idea why they are doing this, but some know exactly what they are doing.”

Trump also took issue with “cancel culture,” which he described as “the very definition of totalitarianism.”

“Make no mistake: this left-wing cultural revolution is designed to overthrow the American Revolution,” he claimed, offering his solution: “Deploying federal law enforcement to protect our monuments, arrest the rioters, and prosecute offenders to the fullest extent of the law.”

In his White House speech the next day, he sounded similar notes about a nation at war from within. He again warned of an “angry mob” hoping to erase American history. He also said that “those in the media who falsely and consistently label their opponents as racists” are the true threats to the political unity that he desires for the country.

Trump’s rhetoric about a nation under siege can be seen as an extension of rhetorical patterns he used during his first presidential campaign. At the Republican National Convention in 2016, he warned that “attacks on our police, and the terrorism in our cities, threaten our very way of life.” In his inauguration speech, he iconically pledged to put an end to “American carnage.” His political modus operandi is to identify a threat within the country and promise to oust it, and his latest target is now so-called “far-left fascism.”

But there are reasons to think that it won’t pay off this time around.

Trump appears to be misreading this historical moment

Trump is banking on the idea that he can mobilize his base by seeding fear of an ascendant extremist left without providing any evidence for its existence. Although efforts by antiracist protesters to topple statues they see as paeans to white supremacy are real, many of the president’s claims about the protesters are exaggerated or inaccurate.

But Trump’s biggest electoral problem here isn’t his exaggerations. It’s that he has chosen to vilify a political movement that has been broadly popular, and that American voters have other issues top of mind.

Most Americans’ perceptions on racism — including many Republicans — have shifted in recent weeks amid ongoing racial justice protests, and much of the public has taken issue with Trump’s handling of race relations in the wake of the police killing of George Floyd.

It is evident from polling that Trump is not on the winning side of the culture war. A majority of Americans support taking down Confederate statues, according to a recent Quinnipiac University poll. Black Lives Matter has won the support of a large majority of voters, including a majority of whites (who skew Republican). As New York magazine’s Eric Levitz points out, in the past month, “The percentage of Americans who say that ‘racial discrimination is a serious problem,’ that ‘police are more likely to use deadly force against Black people,’ and that ‘white people are more likely to get ahead’ all hit record highs in various tracking polls.”

In June, a Washington Post-Schar School poll found that 53 percent of Republicans supported protests that emerged after Floyd’s death. Strikingly, the poll found that even among Americans who believed the protests were mostly violent — something most Republicans in the survey believed — a majority were supportive of the protests.

And in a recent deep dive into polls documenting presumptive Democratic presidential nominee Joe Biden’s increasing lead over Trump, the Atlantic’s David Graham argues that Trump’s handling of race appears to be a fundamental factor:

Polls have consistently shown that Americans disapprove of [Trump’s] response to protests of police violence and believe that he has worsened race relations. In the New York Times/Siena poll, race relations (33 percent) and the protests (29 percent) are the only areas where issue approval lags behind his overall vote preference. In the Harvard/Harris poll, the same two areas earn Trump his worst marks of any issue, though they are still slightly higher than his expected vote.

Taken together, these polls suggest that Trump’s decision to pursue an aggressive law-and-order rhetorical strategy and paint antiracist protesters as bands of extremists bent on destroying America seems to be out of touch not only with most Americans, but even much of the Republican Party.

Another major issue for Trump’s culture war strategy is that it doesn’t reckon with the other big crisis defining American life these days: the relentless spread of the coronavirus.

Voter approval of Trump’s handling of the coronavirus pandemic has steadily declined since April, and a Reuters/Ipsos poll in late June found that just 37 percent of Americans approved of the way he has responded to the pandemic. CNN’s polling expert Harry Enten has explained that when a non-economic issue is top of mind for voters — which the coronavirus has been in recent months — then whoever is most trusted on that issue is likely to win the election. And on that front, Biden has been favored by a sizable margin in multiple polls.

The final problem for Trump’s strategy is that Biden, so far, looks immune to Trump’s attempts to tar the Democratic nominee with his fear-mongering about the rise of an extremist left. A recent Politico/Morning Consult poll shows that just 17 percent of registered voters see Biden as more liberal than most Democrats, and the overwhelming majority — nearly two-thirds — see him as more conservative than, or in line with, mainstream Democrats. That could change in the future, but Biden has consistently made efforts to cultivate perception of himself as a moderate, making it hard for Trump to successfully link him to “far-left fascism.”

Despite these issues, Trump appears set on using the same playbook that helped him win the 2016 election and develop a devoted political base. Texas A&M’s Edwards said he might be doing so because after three-and-a-half years of attacking his enemies and his use of divisive rhetoric throughout the pandemic, Trump may have no other credible lane.

“It is probably too late for him to present himself as a uniter,” Edwards said. “He needs enemies and grievances.”

But with the country united in its focus on the coronavirus, and increasingly attuned to calls for racial justice, so far all signs suggest that voters are not as prepared to embrace someone fixated on jousting with political enemies and splitting the electorate with white identity politics as they once were. The world has changed swiftly and dramatically — political strategy must too.

Support Vox’s explanatory journalism

Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.