Faithless elector: A court ruling just changed how we pick our president
S E E D E D C O N T E N T
A federal appeals court ruled late Tuesday that presidential electors who cast the actual ballots for president and vice president are free to vote as they wish and cannot be required to follow the results of the popular vote in their states.
The decision could give a single elector the power to decide the outcome of a presidential election — if the popular vote results in an apparent Electoral College tie.
"This issue could be a ticking time bomb in our divided politics. It's not hard to imagine how a single faithless elector, voting differently than his or her state did, could swing a close presidential election," said Mark Murray, NBC News senior political editor.
It hasn't been much of an issue in American political history because when an elector refuses to follow the results of a state's popular vote, the state simply throws the ballot away. But Tuesday's ruling says states cannot do that.
The decision, from a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, is a victory for Micheal Baca, a Colorado Democratic elector in 2016. Under state law, he was required to cast his ballot for Hillary Clinton, who won the state's popular vote. Instead, he crossed out her name and wrote in John Kasich, a Republican and then the governor of Ohio.
The secretary of state removed Baca as an elector, discarded his vote and brought in another elector who voted for Clinton. In a 2-1 decision, the appeals court said the nullification of Baca's vote was unconstitutional.
When voters go to the polls in presidential races, they actually cast their votes for a slate of electors chosen by the political parties of the nominees. States are free to choose their electors however they want, Tuesday's ruling said, and can even require electors to pledge their loyalty to their political parties.
But once the electors are chosen and report in December to cast their votes as members of the Electoral College, they are fulfilling a federal function, and a state's authority has ended. "The states' power to appoint electors does not include the power to remove them or nullify their votes," the court said.
Because the Constitution contains no requirement for electors to follow the wishes of a political party, "the electors, once appointed, are free to vote as they choose," assuming that they cast their vote for a legally qualified candidate.
A total of 30 states have laws that bind electors, requiring them to cast their votes for whichever candidate won that state's popular vote. But the laws are weak, providing only nominal penalties for what are known as "faithless electors" who fail to conform to the popular vote.
The Supreme Court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the popular vote. But the justices have never said whether it is constitutional to enforce those pledges.
Legal scholars said Tuesday's ruling was the first from a federal appeals court on the issue of faithless electors. It applies immediately to the six states of the 10th Circuit: Colorado, Utah, Wyoming, Kansas, Oklahoma and New Mexico.
“This court decision takes power from Colorado voters and sets a dangerous precedent," said Jena Griswold, Colorado's secretary of state. "Our nation stands on the principle of one person, one vote. We are reviewing this decision with our attorneys, and will vigorously protect Colorado voters.”
The federal court ruling conflicts with a decision from Washington state's Supreme Court in May, which said electors must follow the results of the popular vote. "The power of electors to vote comes from the state, and the elector has no personal right to that role,” the court said.
Lawyers from the nonprofit Equal Citizens, which represented the Washington state electors and Baca in Colorado, said they will appeal the Washington ruling to the Supreme Court.
“We know Electoral College contests are going to be closer in the future than they have been in the past. And as they get closer and closer, even a small number of electors could change the results of an election," said Lawrence Lessig, a Harvard law professor who founded Equal Citizens and is part of its legal team. "Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election.”
If the Supreme Court chooses to take up the dispute, it would have time to rule on the issue before the Electoral College meets in December 2020 to cast the formal vote for president.
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Good idea or bad?
The attempt to defy the electoral college? Obviously it's a bad one. What's next, doing away with the US Senate? As soon as the democrats win another Presidential election, we will cease hearing about stunts like this.
The freedom of the individual electors to vote against the will of the constituents is a vestigial element of the system. It was there as a safeguard against an ill-informed electorate.
The human electors should be done away with. Their vote should be nothing more than a calculation.
Ill informed electorate? That is a subject onto itself which is worthy of serious debate and deeper discussion.
Which is totally subjective!
Not really. Even Trump agrees that much of his base is ill-informed.
Subjectively means: "based on or influenced by personal feelings, tastes, or opinions"....As in everybody's opinion. I happen to think anybody who votes for a democrat is feeble-minded. So if there are enough people like me who are electors we could overturn the will of the voters in a state. Are you sure you want to do this? Or was that just another hit and run on the President?
Yes, human electors are by definition a subjective element.
Worse, they were there to change the will of their constituents if they felt the constituents made a poor choice.
That is why I recommended the human electors be removed and use the will of the constituents directly. It would be easy. If a district votes for a candidate then that is the 'choice' of the virtual elector.
As long as the will of the voter on a state level is respected. Jill Stein wins the state - she gets the electoral votes of that state. Simple!
I get the impression that you think my position is the opposite of what I have been writing.
As long as it's based on the 'state level' the will of the voter isn't respected.
Lol, no I'm trying to add some levity to a conversation that's getting very technical (in the weeds as they say)
When California turns over it's voter rolls, we can talk about voter integrity.
We haven't finished talking about votes being respected. Why change the subject?
Ill informed or unduly influenced by 'foreign counsel'. The reasoning for the Electoral College, as expressed by Federalist 68, are utterly outdated. Much of it is centered on electors being 'ill informed' about the 'intrigue' in other states and that the electors aren't effected by faction.
That all goes out the window with global media and electors being chosen by political parties.
Add that to the fact that most states are winner take all, which IMHO, is where voters voices are lost. If Colorado, or any other state, REALLY wants the voters to have a voice, at minimum electors should be proportional.
Agreed. No human beings involved. Their 'vote' should be a calculation. It is absurd to have human beings today with such power.
It's the parties that have the power. The parties choose the electors. They aren't REALLY elected by the people.
I did not suggest that the electors were chosen by the people.
My point has been that human electors serve no modern purpose and that we should do away with them with a calculation.
And the power to elect the PotUS then rests with the electors. My point. A faithless elector's power is inappropriate; I have suggested to do away with this.
Electoral College is no longer necessary. Slavery is abolished and the Slave States no longer need 'the protection or advantage'.
What sense does this make...
besides none. y even bother to have an election if the will of the people is not to be abided by ?
Just let the electors choose whomever they wish, what the hell, we couldn't do any worse than where we are now.
Even though I don't hold out much faith in the intelligence of many of my fellow humans, I still believe in one person one vote.
Yet the US Presidential election has never reflected one person, one vote.
It's kind of an odd ruling because the Constitution (Article 2) grants authority to the States to choose electors how ever they like.
So, to me, that says that if a state legislature's manner of choosing electors includes an agreement that the elector will vote with his state's popular vote, then that's the manner they chose, and the elector is bound by that agreement. If you don't like that rule, you don't get to be an elector. Refusing to vote as the elector has agreed basically puts him in breach of contract and the state can respond by terminating his contract and choosing someone else who will vote the way they want.
The federal government doesn't get to tell states how to choose its electors when that authority has been specifically delegated to the states.
So, I don't see this ruling holding up, but if it did, not only would it frustrate the wishes of several states, but it would also torpedo the National Popular Vote movement. For the unfamiliar, that is an agreement between states who all agree that their electors will vote in line with - not with their state's popular vote - but with the national popular vote.
Yet as the seed says, states have failed to put any teeth in the penalty for breach of that contract, intentionally it seems. Even this ruling doesn't preclude the state from penalizing an elector for 'faithlessness'.
Since the elector is ELECTED and we seem to have normalized and now accept that ALL elected officials LIE to get elected, it's hard to see what moral ground there is to harshly penalize a 'faithless' elector.
I'm so confused!
The Constitution defines a great number of limits on democracy. The founders wanted to prevent mob rule, and the dictatorship of the majority. The Electoral College was one of these dispositions.
The Fathers were representative of their times. In French Revolutionary terms - the two revolutions were more or less simultaneous, and many of the Fathers frequented French salons , the Fathers were not plébéien - common folk. They were bourgeois - propertied.
The Fathers did not intend the Presidential election to be a "popular" election. They wanted to isolate the Presidency from the plebeians. So they created the Electoral College. The Electors were to be men of stature, whose wisdom would then choose the President.
Originally, then, the Elector was supposed to make his own choice... but very quickly pressure built to vote as had the popular majority. There have been 179 cases of "faithless electors" , including the 22 whose candidates died before they had the opportunity to vote.
Until that "elector" won't cast a vote for Trump in a state that Trump wins.
Apparently this is just another legal maneuver to eliminate the electoral college altogether and transform Presidential elections to a national popular vote. Keep in mind that electing the President (and Vice President) is the only national Federal election. All other elected Federal offices are filled by state elections.
The electoral college is based upon each state's Congressional representation. Doing away with the electoral college would naturally open the door to challenge how Congressional representation is apportioned.
The electoral college (and apportionment of Congressional representation) is based upon total population; providing representation for people ineligible to vote as well as voters. By transforming the one national Federal election to a popular referendum, people ineligible to vote lose their representation in the election. That would provide justification for Congressional representation based upon the eligible voting population, too.
The United States government does not represent the people according to one person, one vote. The United States is not a democracy. The electoral college places the responsibility of the President to represent the total population in the same manner as for Congress. Eliminating the electoral college would remove that responsibility from the President. Why should Congress be held to a higher standard than the Presidency?
What brought you to those conclusions?
If the Congress, who are elected by the popular vote, manages to represent the total population of their district/state, why couldn't the POTUS?
Ending the Electoral College as the Democrats are seeking means the end of our Constitutional Republic or a Second Civil War
We are a FEDERAL Republic of Sovereign States, not a National Government like France or Germany.
The move to end the Electoral College has two purposes
“Get Rid Of The Electoral College? It Would Lead To The Break-Up Of America, Or Worse
Under their vision, the 50 states would wither away in terms of power and autonomy. They would merely be geographical descriptions, beholden entirely to the federal government. This kind of "democracy" means states like California and New York, with their huge, dysfunctional cities and large Democratic majorities, would become in effect geographical dictators to the rest of us.
It would also result in far more power residing in a corrupt centralized government. It move us inevitably toward the Sovietization of America. If you doubt that, recall that under the now defunct Union Of Soviet Socialist Republics, the individual republics had theoretical autonomy. They in fact had none. All powers and rights resided with the central government.
America's election systems have operated smoothly for more than 200 years because the Electoral College accomplishes its intended purposes," wrote Tara Ross, a lawyer and author of "Enlightened Democracy: The Case For The Electoral College. "
"America's presidential election process preserves federalism, prevents chaos, grants definitive electoral outcomes, and prevents tyrannical or unreasonable rule," she wrote in a piece for the Heritage Foundation. "The Founding Fathers created a stable, well-planned, and carefully designed system — and it works."
Founding Wisdom
In creating the Electoral College, the Founders very carefully and intentionally kept us from having a pure democracy. Why? Pure democracy amounts to mob rule. Get a 51% majority for anything, and it becomes law. Such countries, the Founders knew from deep study of history, inevitably led to disaster, chaos and collapse.
No Electoral College? Some states might hate losing their ancient rights and autonomy so much that they decide to secede. The left, which today cheers on far-left anti-Trump California when it says it might secede, would no doubt suddenly get very authoritarian about keeping Red States in the union. They're taxpayers, you see.”
Which is why any of those States can choose to award their electoral votes to whichever candidate they want. If that means they decide by a majority within a State to give their electoral votes to the national popular vote winner, then that is their States right to do so, no constitutional amendment needed and the electoral college would still exist, though it would no longer have the power to overturn the American peoples choice for President and give it to the less popular candidate. Just a few more States to sign on and its a done deal and there's nothing the tooth gnasher's can do about it. Red States threatening to leave the Union? Yeah, likely story since they are the most dependent on the Federal government. They like to whine and complain about entitlements all day long but when it comes time for the handouts they're almost always first in line. The top 10 most dependent States are deep red States.
"when the lens shifts to political ideology, the survey finds virtually no difference in the share of conservatives (57% ), liberals (53%) or political moderates (53%) who have been assisted by at least one entitlement program ."
What your cut & paste is whining about losing is rural voting power that gives some red Stets more than three times the voting power as an American from California or new York. Why are they fighting so hard to preserve this obvious inequality? Because they know they can't win any argument on merit, they can't ever elect a monumental incompetent like Donald Trump without that inequity, the majority would make sure we didn't saddle America with another half-wit bumbling orange faced Mussolini.
"The federal court ruling conflicts with a decision from Washington state's Supreme Court in May, which said electors must follow the results of the popular vote. "The power of electors to vote comes from the state, and the elector has no personal right to that role,” the court said."
This State court ruling will soon be overturned. Otherwise we'll have a system where 538 electors individually decide which candidate they prefer which then would determine the winner of each national election, there would be no point for any citizen voting if they don't have to follow either their State or national popular vote winner.
From your link:
It looks like the editorial board of Investor's Business Daily need to read the fucking Constitution, especially Article II, Section I, Clause I since they quoted THAT rather than Cohen's Amendment.
Didn't you just decry voters lack of knowledge of the Constitution?
Here is a link to the article in the ABAJournal. It also contains links to other sites reporting on the case.
The case was decided on the merits, not whether it usurps one man, one vote. That has never been the rule in this country. Although many would like to believe the myth, it is just that.
The courts ruled that states may make rules about electors, but once the electors are in place and begin voting , they are no longer under the state's authority, but rather Federal authority, as their actions are now Federal.
Here is the full 125 page opinion if you care to read it.
The electoral college encourages division, though only on those rare occasions, 4 so far in our history, that the electoral college gives the Presidency to the popular vote loser. It happens so rarely it's often forgotten till we get slapped in the face by it once again.
But why do I claim it sows division? Because in well over 90% of the elections there's no issue, the most electoral college votes go to the popular vote winner and Americans cheer and accept the new President because the winner had the most Americans supporting them. On these rare occasions that the electoral college hands the Presidency to the popular vote loser, you have millions of Americans angered that their votes were discarded, tossed out by what some see as unscrupulous political operatives working the system to prevent the will of the people.
Because it happens so rarely, the fact is, getting rid of the electoral college won't even really be noticed, odds of it happening again are less than 8%. But the fact that we have an 8% chance of a loser being selected as President by a handful of out of touch rubes who think they should have three times the voting power as other Americans is still too large a gamble.
If we had, "one person one vote", the republicans would never win another election and they know it, so of course they want the EC.