Does This Federal Appellate Case Risk Killing the Electoral College?
. . .Last week, three years after Trump won the election, the U.S. 10th Circuit Court of Appeals issued a ruling over Micheal Baca’s “faithless electing.” Baca was a Hillary-hating Democratic elector in Colorado; in 2016, he cast his ballot for Ohio Gov. John Kasich, despite Clinton having won Colorado’s popular vote. Colorado’s Secretary of State then removed Baca as an elector, threw out his vote, and replaced him with a Hillary voter. Baca sued for violation of his civil rights, and that case made its way up to the 10th Circuit.
Now’s a good time to point out that votes of electors are governed by state law; that means, of course, that the specifics on those laws vary from state to state. Some statutes specifically spell out what happens if an elector goes rogue, and others do not. While examining Colorado’s response to Baca’s refusal to fall in line, the 10th Circuit took a gander at the U.S. Constitution — specifically, the Twelfth Amendment. Writing for the 2-1 majority, Appellate Judge Carolyn McHugh ruled that for quite some time now, we’ve been getting things wrong.
According to Judge McHugh, the framers of the Constitution said what they meant and meant what they said; if they used the word “vote” to describe the electors’ function, they really meant “vote,” with all the independent judgment that the word implies. Colorado, the judge ruled, shouldn’t be interfering:
We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose. And if that freedom emanates directly from the Constitution, state law cannot strip it away.
. . .
Critical decision in the 10th circuit, with an extraordinary opinion finding states cannot control how presidential electors vote. This issue (via a parallel Washington State case) is on its way to #SCOTUS. https://t.co/27xdl608ZM
— Lessig (@lessig) August 20, 2019
The next few weeks will be critical for the future of the electoral college. If certiorari is sought in the Colorado case, litigants will have a compelling argument that the case presents an important split among the circuits. And if the case is taken up by the high court, it may find itself landing on friendly soil. Justice Ruth Bader Ginsburg has already gone on record saying that she would support changes to the electoral college system. (Read more from “Does This Federal Appellate Case Risk Killing the Electoral College?” HERE)
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