Last week, the 10th Circuit Court of Appeals in Colorado ruled that members of the Electoral College can cast votes for whomever they want to be president regardless of their state’s popular vote bylaws. Here’s what you need to know.
The Federal Court:
In the United States, the federal (national) court system is split into three tiers: district courts (trial courts), courts of appeals, and the Supreme Court. Now, the reason these courts are on the federal level is because they decide lawsuits between citizens of different states, cases against the United States, and cases involving specific federal laws (essentially meaning that their cases impact an area of the United States greater than a single state). Each court included in these tiers has its own jurisdiction, meaning that the court's decision, whatever it may be, only holds precedent and is only valid over a set region.
For example, the 10th Circuit Court of Appeals’ jurisdiction, the court which made the decision in the particular case, includes the District (state) of Colorado, the District (state) of Kansas and the District (state) of New Mexico. Thus, any decisions made by this court will only apply to the districts of Colorado, Kansas, and New Mexico. Districts are also in the jurisdiction of federal district courts, of which there are 94. Simply speaking, as you move up the ladder of federal courts, the jurisdiction of the court’s decision grows larger until it eventually is decided in the Supreme Court, the jurisdiction of which is the entire United States.
The Electoral College:
What most people don’t realize when they go to vote for the President and Vice President is that their votes don’t actually decide who wins an election. Instead, what (or who) they are voting for is the group of electors who will be sent to cast their votes for the position in question at a later date.
Every state has a set number of electors in which the total number of members is equal to the number of state representatives and senators that state has in congress. Within these state electoral groups every individual elector has the right to one electoral vote. What you achieve from this system is the same phenomenon you watch on T.V. on election night. When a news program assigning a state’s electoral votes to certain candidates, they are really dividing votes from the Electoral College.
The Constitution includes no provision that forces electors to vote for who the majority of the citizen’s in their states vote for, but for essentially all of American history, that is what they have done. Whoever wins the majority of the popular vote (AKA whoever gets the most individual citizen votes) in a state would typically be the person who all electors from that state cast their ballots for when they went to vote. This is what is called the ‘Winner Takes All’ system: whoever gets the majority of the popular vote in a state gets all of the electoral votes for that state.
Despite the lack of a constitutional provision on this issue (or one could really say as a result of the lack of clarity on the issue), the Supreme Court ruled in 1952 that states are not in violation of the Constitution when they require electors to pledge that they will follow the will of the popular vote. But, the justices have never said whether it is constitutional to enforce those pledges. These sort of pledges have also been implemented by political parties, which organize the elector groups that eventually vote for candidates.
Judicial Review: When the Supreme Court makes a ruling, the constitutional question at hand has gone under a process that is called Judicial Review. What this means is the Supreme Court has the right to determine the constitutionality and unconstitutionality of an act, whether that act be a law passed by congress or the actions of a state’s Secretary of State. What then happens when the Supreme Court makes a ruling is that that ruling becomes a national precedent, essentially holding it at the same level of validity as any written law. BUT, these decisions can be overturned by two methods, the first being the passing of a new amendment by Congress, but more importantly and likely is that the Supreme Court could overturn their past decisions in a new case that addresses the same or similar questions.
But, before I digress into the history of this standard, I think it more important to explain the court case in question comes in, and specifically how the fact that the Constitution lacks a provision enforcing this aforementioned electoral precedent has created some chaos in the customs of suffrage.
Who is Michael Baca and What Did He Do?
As election night 2016 came to a close, it became clear that Donald Trump would be the next POTUS, despite having a minority popular vote in comparison to Hillary Clinton; though Clinton had about 3 million more individual votes than Trump, she lost in the Electoral College by a relatively wide margin of almost 80 electoral votes. In the midst of this chaos, a story arose from the state of Ohio, where Hillary Clinton, according to historical precedent, won nine electoral votes given her popular vote victory.
Among the Ohio Democratic Party’s slate of electors was Michael Baca, a proponent of the “Hamilton Electors”, a group he created with the hopes of getting enough electors to defect from their rubber stamping tradition, and in turn create a deadlock in the Electoral College that would force the presidential decision to Congress for decision.
Though being an elector in Ohio, a state where electors must take an oath to "vote for the candidate, and by separate ballot, the vice presidential candidate who received the highest number of votes in the preceding general election," Baca decided it would be in the nation’s best interest to ignore his vow. Instead, when positioned to cast his vote, he wrote in the name of Ohio Republican John Kasich. Quickly, as has been done with “faithless electors” in the past, the secretary of state for Ohio replaced Baca with an elector who then went on to vote for Hillary Clinton.
But Baca’s story does not end there. The case of the “faithless elector” was eventually brought up to the 10th Circuit Court of Appeals for the United States, where judges ruled against the actions of the state. According to the split-majority opinion (meaning only 2 of the 3 judges on the panel agreed with the ruling), “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,” meaning that the Ohio law that obliges electors to vote for the majority candidate in their state is invalid. Not only this, but any state or district that falls in the jurisdiction of this decision will now have to follow the same ruling.
The basis of this claim is that electors have the “constitutional right to vote for the president and vice president candidates of their choice,” But, this idea is still in the air, as in reality there is no clause that gives or restricts this right of the elector. The “of their choice” section of this really quite interesting and questionable, because as I explained before, and will show again here, the supreme court has held that electors can’t act based purely on their own will, but with a catch. The National Archives and Records Administration’s website provides a good overview on this:
“The U.S. Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties' nominees. Some state laws provide that so-called "faithless Electors" may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.”
Thus, it seems to be that electors do not have a constitutional right to vote for “candidates of their choice,” and in fact can be made to pledge and abide by certain party and state procedures. But, there is not an answer as to whether or not these pledges can be constitutionally enforced. According to that principle of judicial review whereby the Supreme Court determines the constitutionality of legislation and rules, elector pledges are in fact, by definition, constitutional. Problems only arise when it comes to the enforcement of such vows.
Given the absence of the latter part of the ruling (on enforcing electoral pledges), the case made by the appeals court very well could go to the United States Supreme Court, where nine justices could ultimately set a precedent that would dramatically affect what it means to vote, and even more what it means to be an American citizen.
If this case were to go to the Supreme Court, the 1952 precedent would be put under challenge. Additionally, the case would likely be brought up alongside a case from the Washington state Supreme Court, in which judges ruled that the Constitution “gives to the state absolute authority in the manner of appointing electors ... The power of electors to vote comes from the state, and the elector has no personal right to that role.” What this means is that two cases in two different jurisdictions have come in direct contradiction of each other. The only rational step to resolve this would be to have both cases taken on jointly by the Supreme Court of the United States, which would then decide the constitutionality of both decisions and set the national precedent.
But then again, the Supreme Court ultimately has the right to decide which cases they take on. What this does pose as a possible conclusion is in fact no definite conclusion at all. Instead, the rulings could be left undecided on the national scale, leading to the implementation of different electoral standards in several jurisdictions, and leaving the right and power to vote in a variable state that would inevitably lead to resistance and disarray. For those in the jurisdiction of the 10th Circuit Court, their votes could hold near to no value. Imagine practicing your civil liberty of suffrage, supporting a candidate who wins a majority vote, whether by small or large margin, and then having your electors vote for whoever they deem the best candidate. This is the future some may face.
Sources:
https://www.nytimes.com/2019/08/22/us/politics/electoral-college-faithless-elector.html?searchResultPosition=2
https://www.latimes.com/politics/story/2019-08-27/supreme-court-could-decide-whether-voters-or-electors-choose-the-president