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The 10th Circuit Weighs in on the Electoral College Debate

While Americans have debated for many years about the continued need for the Electoral College, the conflict reached new heights after the 2016 election when Donald Trump won the presidency despite losing the popular election by almost 3 million votes.  The large discrepancy between the popular vote and the Electoral College vote has caused some people to question why we still rely on the Electoral College in the 21st Century.  Others believe it remains an important part of the process but question the right of the states to control how Electors vote.

When you go to the polls to vote in the presidential election and select a candidate, you are actually voting for Electors who are pledged to your candidate.  You do not vote directly for the president.  Is the Elector you choose required to vote for your candidate or is he free to make his own choice?  That is the crux of the issue decided by the United States 10th Circuit Court of Appeals.

The Issues and Reasoning Behind Baca v. Colorado Department of State.

In 2016, Michael Baca was a 24-year old Colorado Elector.  The popular vote was over, and it was clear the electoral votes would fall in such a way as to elect Donald Trump to the presidency.  Baca was part of a group called “Hamilton Electors,” who wanted to use their votes to influence the election. Baca did not want to cast his vote for Hillary Clinton, and he did not want Donald Trump to win the election. He and the other Hamilton Electors had a plan.  If they could convince a few other Electors to deviate from the expected norm and cast their vote for another Republican candidate, they could defeat Donald Trump. (Hillary Clinton won the popular vote in Colorado.) Baca scratched out Hillary Clinton’s name on his ballot and cast his vote for John Kasich, the Republican Governor of Ohio.  He had urged others to do the same.  Colorado’s Secretary of State voided Baca’s ballot and replaced him with another Elector who voted for Clinton. 

Baca sued and the case ended up before the U.S. 10th Circuit Court of Appeals.  The 10th Circuit ruled that Colorado’s Secretary of State violated provisions of the U.S. Constitution when he voided Baca’s ballot and appointed a new Elector.  The three - judge panel was split in ruling for Baca with two judges in favor of the decision and one opposed.   The opinion explains the Court’s position with the statement: “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.”  Some legal scholars disagree with the opinion, believing states have the right to ensure that Electors follow the will of the people.  The only states legally affected by the Baca decision are those in the 10th Circuit.  That means Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming cannot require Electors to vote in concert with the popular vote.  Other states are free to pass laws limiting Electors’ voting choices until their Circuit issues an opinion like that of the 10th or until the Supreme Court weighs in on the issue.  Right now, 30 states have laws on the books requiring Electors to vote in accordance with the popular vote. 

Why Baca’s Group Calls Themselves the Hamilton Electors.

The Baca group used the name Hamilton Electors because they believed the Electors should make independent judgments in casting their votes. Alexander Hamilton was one of the founding fathers of the United States.  He was a politician, legal scholar, banker and economist.  He was very involved in promoting and in interpreting the U.S. Constitution.  Hamilton lived in a time when the majority of Americans were agricultural workers with little or no formal education.  He was an elitist who feared the very idea of the uneducated masses electing the president.  In his #68 Federalist Paper, Hamilton wrote:

“It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.  A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”

Later, he goes on to describe the benefits of the Electoral College system, saying:

“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Basically, Hamilton and many of the founding fathers believed the general populace was not qualified to elect a national leader.  The Electoral College insured that the president would be elected by educated and refined men of the upper classes.

Do We Still Need the Electoral College?

The world has changed in the past 230 years.  Compulsory public education, electronic voting, television, and social media have changed the American Public and the election process.  We are no longer a country of unschooled agricultural workers.  Today, most of our population lives in urban areas.  Most go to school and have access to news and current events.  This social and cultural climate has created a movement for one person/one vote.  There are also those who take the opposite view.  They believe the Electoral College was established for a purpose that remains valid and necessary in today’s world.  Since the 2016 election, many Democrats have been vocal about eliminating the Electoral College.  Many Republicans take the opposite view.  The question is out there and unlikely to go away any time soon.

Can We Expect the United States Supreme Court to Accept Review of the Baca Decision?

That question remains unanswered.  The 10th Circuit opinion is in direct conflict with a Washington State Supreme Court decision.  In May, the Washington court handed down the Levi Guerro opinion which affirms the State of Washington’s right to impose monetary fines on presidential Electors who do not vote in accordance with the popular vote.  This case stands for the proposition that states do have the right to control how Electors vote.  Will the conflict be enough to prompt the U.S. Supreme Court to take on the issue?  No one knows.  Generally, the U.S. Supreme Court gives less weight to state court decisions than to federal circuit court rulings, so it may not deem the conflict weighty enough to accept review.  However, advocates on both sides of the issue are determined to have the question settled before the next election.  We will just have to wait and see what happens.

Resources

www.ca10.uscourts.gov/opinions/18/18-1173.pdf

www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-68.php

www.courts.wa.gov/opinions/pdf/953473.pdf

 

This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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