As the Colorado Sun’s Jesse Paul reports, a federal court ruling today could result in historic changes to the role of presidential electors–a change giving them essentially the power to disregard the will of the electorate in choosing who to cast their Electoral College vote for:
Colorado’s presidential electors do not have to vote for the candidate who wins the state’s popular vote, the powerful 10th U.S. Circuit Court of Appeals in Denver ruled Tuesday evening, a decision that could have major ramifications for future elections.
A three-judge panel on the federal appellate court ruled 2-1 against the Colorado Secretary of State’s Office in a case dating back to the 2016 presidential election, when three of the state’s nine presidential electors — the state’s Electoral College voice — tried to vote for candidates other than Democrat Hillary Clinton, who won handily in the state.
Readers will recall that former GOP Secretary of State Wayne Williams was extremely upset about the prospect of Colorado electors making their own choice, and threatened them with every available retaliation including criminal prosecution. Williams wasn’t nearly as perturbed by rampant petition fraud that went unchecked through his office in two consecutive elections, and certainly didn’t exercise the same integrity over his office’s discretionary spending account–but those nefarious “faithless electors” seemed to put at risk everything Williams got into county clerking and then Secretary of Stating to uphold.
Or is it the Electoral College putting everything at risk? That’s the question at the heart of today’s ruling, which seeks to reconcile the enormous power of the Electoral College (and the attendant responsibility) with the constitutional rights of individual electors. It’s a system that was created as a buffer between the “unchecked” will of the majority and the rights of smaller states, historically in the context of preserving the rights of slave states. So if the courts rule that individual electors can do whatever they want because they are free Americans who can do whatever they want, how is that any less objectively fair than protecting slavery, which was the original purpose of the Electoral College?
If your answer to all of this is that it’s time to get rid of the Electoral College–or at least reduce its ability to put someone in office against the will of a national majority–you’re getting closer to identifying the real problem. Though you won’t find many Colorado Republicans who will agree, since they’re in the middle of a so-far successful campaign to repeal the National Popular Vote Compact legislation Colorado signed into law this year. That compact is still years if ever from passage in enough states to take effect, but as the Sun continues, today’s ruling could scramble that question as well:
[Secretary of State Jena] Griswold said that since the 10th Circuit’s ruling says that Colorado law cannot compel an elector to vote one way or the other, the national popular vote compact’s mandates could be ignored under the decision. She reiterated, however, that she’s optimistic a remedy can be found before that situation would ever arise and her office is still reviewing the long, complex ruling to understand its impact.
One such remedy, and if today’s ruling stands we’ll be talking more about it, is to abolish the Electoral College.