Federal Court Ruling May Weaken Electoral College, As Democrats Seek To Eliminate It

In a case that likely will go on to the US Supreme Court, the 10th Circuit Federal Appeals Court in Colorado ruled earlier this week that the state's presidential electors do not have to back the candidate who wins the state's popular vote. 

Traditionally, electors, who usually have been chosen from their state's respective political parties, have pledged to vote for their state's winner and have been expected to vote for that candidate. Throughout America's history, more than 99 percent of electors have voted as pledged.

This case says they don't have to and addresses a decision of then-secretary of state Wayne Williams ordering the electors to back Hillary Clinton in 2016 since Clinton won the popular vote in Colorado.  In the case, a Colorado elector, actually pledged to Clinton, wanted to throw his vote to John Kasich, hoping that enough electors across the country would do the same, creating a political stew that would thrust the election decision to the House of Representatives where the Republicans in leadership, it again was hoped, would vote for Kasich. It was a lot of "hoping" with the purpose of depriving Donald Trump enough electoral votes to win the Presidency. 

The appeals court ruled that the Constitution provides "presidential electors the right to cast a vote for president and vice president with discretion.  And the state does not possess the countervailing authority to remove an elector and to cancel his vote in response to the exercise of that constitutional right."

Legal experts differ on whether this decision weakens or strengthens the Electoral College, which is delineated in the US Constitution in Article II, Section 1.  But it comes on the heels of growing clamor, particularly by the Democratic Party, to eliminate it altogether and have the President and Vice President chosen by popular vote alone. 

Just this week, Democratic Congresswoman Alexandria Ocasio-Cortez, slammed the Electoral College as a "racist scam," as she posted a video of her ride through the less populated areas of America's heartland...in her view, America's mostly white heartland.

Reaction from that area was swift.  Iowa Republican Senator Joni Ernst tweeted on Wednesday, " Actually @AOC, eliminating the Electoral College would silence our voices here in Iowa and in many other states across the country," according to the New York Post.

At least 17 Democratic candidates for president, including Senators Elizabeth Warren and Bernie Sanders, agree with Ocasio-Cortez that the Electoral College has to go.  And a majority of Democrat voters also seem on board. A Hill-Harris poll released earlier this year in The Hill showed that 60% of Democratic voters surveyed said they supported abolishing the Electoral College and "allowing whoever receives the most votes nationwide to become president." 

A constitutional amendment to eliminate the Electoral College altogether needs three-quarters of the states to ratify it.  That's a hard climb. Many Democrats are trying another route to, in essence, allow them to change the Constitution another way.  Writing in The Daily Wire, election law attorney Mark Meusner says there's been a major push, mostly led by Democrats, to get state legislatures to agree to the National Popular Vote Interstate Compact (NPVIC). 

In this agreement, states consent to award their Electoral College votes to the winner of the national popular vote. He says so far 15 states plus the District of Columbia have signed on to the agreement. But Meusner also believes this latest ruling from the 10th Circuit in Colorado undercuts that effort saying "if a state cannot require that its delegates vote in accordance with its own state's popular vote, it will therefore also never be able to require that its delegates vote in accordance with the nation's popular vote." He believes it will certainly be cited by lawyers who will eventually end up arguing the unconstitutionality of the NPVIC.

Hardly anyone believes the effort to eliminate the Electoral College would have any legs at all if Hillary Clinton had won the 2016 election. Oddly, it never seems to be discussed much if Democrats win. Remember the election of 2000 and 2016. Now as 2020 grows closer, and electioneering heats up, expect the debate over the Electoral College only to intensify.