Federal court undercuts Democrats efforts to nullify Electoral College

On Tuesday, the Denver-based U.S. Court of Appeals for the 10th Circuit ruled that the Colorado secretary of state violated the Constitution when he removed an Electoral College delegate who had chosen to vote for John Kasich instead of Hillary Clinton. The secretary of state nullified the vote of the delegate and installed a new delegate who voted in accordance with the popular vote of the state of Colorado.

Michael Baca, a loyal Democratic voter, was elected as a delegate to the Electoral College in November 2016. By voting for Kasich instead of Hillary, Baca was attempting to be a part of a movement by Electoral College delegates across the country to pull away votes from both Trump and Hillary so as to send the election to the U.S. House of Representatives. The Constitution provides that if no candidate receives 50% plus one vote (270 Electoral College votes), then the top three candidates in the Electoral College are to be presented to the House of Representatives and the House is to select the next president.

Baca’s plan was dependent upon other Republican Electoral College delegates also voting for Kasich. Trump received 304 Electoral College votes and, for the plan to succeed, 35 Republican delegates would have also had to cast their votes for Kasich. While Kasich would not have received any votes in the general election, his third-place finish in the Electoral College would have made him eligible for the Republican-controlled House to elect him as president of the United States.

Democrats have increasingly sought to erase the Electoral College’s influence by promoting state laws that would force electors to vote for the national popular vote winner — and those laws were now in jeopardy as a result of the court’s ruling, legal experts said.

The decision, however, also raised the prospect that electors could legally defect at the last minute, and decide the occupant of the White House on their own in dramatic fashion, weeks after Election Day.

The split decision by a three-judge panel on the Denver appeals court asserted: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”

The panel continued, “The electoral college did not exist before ratification of the federal Constitution, and thus the states could reserve no rights related to it under the Tenth Amendment. Rather, the states possess only the rights expressly delegated to them in Article II and the Twelfth Amendment.”

The appeals court reasoned that once electors show up at the Electoral College, they essentially become federal actors performing a “federal function,” independent of state control.

Organized efforts to undermine the Electoral College have picked up steam this year. The so-called National Popular Vote interstate compact, which would commit states’ electors to the winner of the national vote, has been adopted by 16 jurisdictions, accounting for 196 electoral votes, including 15 states and the District of Columbia.

However, the compact, by its terms, will only take effect if jurisdictions accounting for at least 270 of the 538 total votes available in the Electoral College also sign on.

More than two dozen states also have laws binding electors to the results of the popular vote in those states. But the actual penalties for so-called “faithless electors” are minimal and in many cases non-existent.

The Tuesday ruling could spell doom for a new Colorado law that effectively signed the state onto the national compact, by prohibiting states from forcing their electors to vote for either the national or state popular vote winner. Other states that have signed onto the compact include Rhode Island, Vermont, Hawaii, Delaware, Maryland, Massachusetts, New Mexico, Washington, Connecticut, New Jersey, Illinois, California, and New York.

At the same time, Frank McNulty, an adviser to Protect Colorado’s Vote, which wants voters to overturn the law, cautioned that the ruling could also free electors to decide on their own to support the candidate with the most votes nationally — or any candidate, for that matter.

“It is a double-edge decision,” he said.

The Electoral College system is established in the Constitution. When voters cast a ballot for president, they are actually choosing members of the Electoral College, called electors, who are pledged to that presidential candidate. The electors then choose the president. Electors are selected by state parties at nominating conventions, and generally consist of party leaders, activists, and other luminaries.

Democrats, who currently have a stranglehold on power in population-dense states like California and New York, have long protested the Electoral College. States receive electoral votes equivalent to their number of congressional districts plus senators, which allows less populous states to have more impact than they would under a popular vote system.

The upcoming 2020 census is expected to result in some shifts in Electoral College numbers by 2024, including an increase in electoral votes for traditional GOP strongholds like Texas.

Tuesday’s ruling applies only to Colorado and five other states in the 10th Circuit: Kansas, New Mexico, Oklahoma, Utah and Wyoming.

But it could influence future cases nationwide in the unlikely event that enough Electoral College members strayed from their states’ popular vote to affect the outcome of a presidential election, constitutional scholars said.

And with new revelations about Google and other large tech platforms manipulating voters, the popular vote numbers have been called into question making the “old-fashioned” Electoral College the best hope for a fair election.