In an epic defeat for Democrats and their efforts to effectively replace the Electoral College with a nationwide popular vote, a federal appeals court ruled on Tuesday that presidential electors in the Electoral College have the absolute right to vote for presidential candidates of their choice.
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 10th U.S. Circuit Court of Appeals held that the Colorado secretary of state violated the Constitution in 2016 when he removed an elector and nullified his vote because the elector refused to cast his ballot for Democrat Hillary Clinton, who received a plurality of the popular vote both nationally and in Colorado.
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.
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.
Prominent Democrats, including Rep. Alexandria Ocasio-Cortez of New York, have slammed the Electoral College in recent weeks, proclaiming that it’s a “racist scam.”
“The Electoral College has a racial injustice breakdown,” Ocasio-Cortez said earlier this week. “Due to severe racial disparities in certain states, the Electoral College effectively weighs white voters over voters of color, as opposed to a ‘one person, one vote’ system where all our votes are counted equally.”
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.
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.
The court ruling in Denver could be important if a future Electoral College is so closely divided that a handful of “faithless electors” change the outcome by casting a ballot contrary to the popular vote, said Ned Foley, a professor at Ohio State University’s law school.
“This opinion would be taken very seriously,” he said. “It would be considered judicial precedent.”
Meanwhile, parallel congressional efforts to usurp the Electoral College have been unsuccessful. In January, Rep. Steve Cohen, introduced a pair of constitutional amendments to eliminate the Electoral College, claiming it was “outdated.”
“Americans expect and deserve the winner of the popular vote to win office,” Cohen said at the time. “More than a century ago, we amended our Constitution to provide for the direct election of U.S. Senators. It is past time to directly elect our president and vice president.”
However, a constitutional amendment eliminating the Electoral College would require two-thirds of both the House and Senate to approve the measure, along with three-fourths of state legislatures. Alternatively, Congress could hold a national convention and states could host ratifying conventions, but a two-thirds majority would still be necessary.
Trump secured victory in the 2016 election by winning the Electoral College with 304 votes to Clinton’s 232 despite Clinton winning nearly three million more votes than Trump.