Liberals trying to change the rules got a huge setback on Tuesday, when the 10th U.S. Circuit Court of Appeals confirmed that electors can vote freely for their choice, no matter what. Progressives can’t force electors to vote for the popular vote winner.
Democrats have been trying to compel electors to vote for the winner of the national popular vote, instead of following the rules as originally written in the Constitution. There’s a National Popular Vote interstate compact that’s been adopted by 16 jurisdictions accounting for 196 electoral votes. The compact needed 270 of the 538 votes to go into effect, but now it’s a moot point. Such an agreement would be unconstitutional.
Last week’s decision means that electors can’t even be forced to vote for a state’s popular vote winner, much less the national champ.
The question came up right after the 2016 election. An elector was removed and his vote “nullified,” because he cast a ballot for Donald Trump. Hillary Clinton won the popular vote in Colorado, so he was “pledged” to vote for Hillary.
The 10th Circuit says that canceling his vote was a violation of the Constitution. It was set up that way for a very important reason. Our founding fathers didn’t trust the populace to make the right choice so they built in a safety net.
The court ruling is a two-edged sword though. “It is a double-edge decision,” Frank McNulty with Protect Colorado’s Vote points out. It means that electors can defect at the last minute weeks after the election and vote for whoever they want. Just as intended.
The three judge panel asserted “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion.” That means if they don’t feel comfortable voting for who they are supposed to, they don’t have to.
What Colorado did was totally wrong. Pursuant to the Constitution, “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.”
Even state’s rights arguments don’t hold water in this case. “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.”
When Electoral College convenes, the electors are performing a “federal function,” and are no longer under state control.
Democrats have protested the Electoral College for years. They’ve never been happy with lower population states having more power than they do. Predictably, Rep. Alexandria Ocasio-Cortez of New York called the electoral college a “scam.”
“The Electoral College has a racial injustice breakdown,” Ocasio-Cortez said. “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.” She forgets that we do not live in a Democracy. We live in a constitutional Republic.
Tuesday’s ruling only applies to six states in the west but it will influence cases nationwide.
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