Electoral College Not Bound to Pledged Votes, Says Federal Appeals Court

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Source: Goethe Behr, “Electoral College May Become Obsolete,” uspresidentialelectionnews.com, Feb 28, 2019

Members of the Electoral College may vote for any candidate in presidential elections, regardless of the state’s popular vote winner, the US Court of Appeals for the 10th Circuit ruled on Aug. 20, 2019.

The court case concerned an elector in Colorado, Democrat Michael Baca, who voted for John Kasich in the 2016 election even though Hillary Clinton won the state’s popular vote. Because Colorado has a law requiring that electors vote for the popular vote winner, the state replaced Baca with an elector who voted for Clinton. Baca sued Colorado, claiming the state violated his constitutional right to vote for whomever he wants.

The ruling by a three-judge panel (2-1) stated, “The text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the president and vice president candidates of their choice.”

The case is likely to go to the Supreme Court because the 10th Circuit ruling is in direct conflict with a May 2019 Washington Supreme Court ruling. That ruling stated, “the Constitution confers broad authority on the states to dictate the manner and mode of appointing Presidential elector.”

In the history of US presidential elections, only 67 electors have voted against their party’s nominee, according to the Constitution Center. Seven did so in the 2016 presidential election, the highest number ever. An elector who doesn’t vote as pledged is called a “faithless elector.”

A debate over the Electoral College has continued since the 2016 election, when Hillary Clinton won the popular presidential vote by nearly three million votes but Donald Trump became president by winning the Electoral College.

15 states and DC (representing 195 electoral votes) have passed laws requiring that all of the state’s electoral votes go to the national popular vote winner of the presidential election. These laws would go into effect if states representing 270 electoral pass similar laws, but would be difficult to enforce without federal congressional approval.

Many 2020 democratic presidential candidates would like to do away with the Electoral College entirely. Senator Elizabeth Warren (D-MA), for example, stated, “Every vote matters, and the way we can make that happen is that we can have national voting, and that means get rid of the Electoral College.”

Republicans, however, largely do not support abolishing the Electoral College. They argue that the Electoral College protects the votes of Americans living in states with smaller populations from being drowned out by more populous, mostly liberal coastal states. Senator Lindsay Graham (R-SC) tweeted, “The desire to abolish the Electoral College is driven by the idea Democrats want rural America to go away politically.”

Discussion Questions – Things to Think About
1. Should Electoral College members be allowed to vote for whomever they want? Why or why not?

2. Should the Electoral College be abolished? Why or why not?

3. Should Electoral College votes be assigned to the popular vote winner automatically? Why or why not?

Sources:

CNN, “Read: 10th Circuit Appeals Court Ruling on Presidential Electors,” cnn.com, Aug. 21, 2019

Erin Corbett, “Why Democrats Want to Abolish the Electoral College–And Republicans Want to Keep It,” fortune.com, Apr. 2, 2019

Jose A. Del Real and Julie Turkewitz, “Should the Electoral College Be Eliminated? 15 States Are Trying to Make It Obsolete,” nytimes.com, May 22, 2019

Lyle Denniston, “Can States Control How Presidential Electors Vote?,” constitutioncenter.org, Aug. 26, 2019

Noah Feldman, “Appeals Court Opens the Door to Electoral College Chaos,” bloomberg.com, Aug. 25, 2019

Trip Gabriel, “Electoral College Members Can Defy Voters’ Wishes, Court Rules,” nytimes.com, Aug. 22, 2019