The 10th Circuit Court of Appeals ruled last week that Electoral College members are free to vote for the presidential candidate they choose and can’t be bound by the popular vote in their respective states.
Some states have laws that punish so-called faithless electors for not voting for the candidate to which they pledged support, but there have long been legal questions about the enforceability of such laws. In May, the Washington State Supreme Court ruled in a separate case that electors could be fined for refusing to cast ballots for the candidate who won the popular vote in that state.
The new decision appears to call into question the viability of the National Popular Vote movement, a drive to create an interstate compact forcing presidential electors to cast their ballots for the candidate who wins the popular vote nationwide. The goal of the movement is to mandate the direct election of the president without having to amend the U.S. Constitution, a notoriously difficult task.
Supporters say that when states representing a majority of electoral votes—270 out of 538—ratify the compact, it will take effect. Critics say it’s not that simple, arguing the proposal is unconstitutional and subverts the will of the Founding Fathers who opposed direct democracy, which many derided in the early days of the nation as “mobocracy.”
If the 10th Circuit ruling, which will almost certainly be appealed, stands, and the interstate compact comes into force, it’s unclear if electors bound to vote for the national popular vote winner could be compelled under the compact to do so.
The case, cited as Baca v. Colorado Department of State, was decided Aug. 20 by a three-judge panel of the 10th Circuit Court of Appeals. The case was heard by Judges Carolyn B. McHugh, Mary Beck Briscoe, and Jerome A. Holmes. McHugh was appointed by former President Barack Obama; Briscoe, by former President Bill Clinton; and Holmes, by former President George W. Bush.
The Constitution permits electors to vote at their own discretion, the ruling said, “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,” McHugh wrote in the majority opinion.
Briscoe filed a dissenting opinion, indicating she would have thrown the case out for mootness.
Elector Michael Baca was part of a group called the “Hamilton electors,” who attempted to convince 2016 electors who were pledged to Democrat Hillary Clinton or Republican Donald Trump to come together behind an alternative candidate to keep Trump out of the White House. When the electors met Dec. 19, 2016, Baca crossed out Clinton’s name on his ballot and wrote in John Kasich, the GOP Ohio governor who also ran for president.
Then-Secretary of State Wayne Williams, a Republican, refused to accept the vote and removed Baca as an elector, replacing him with another elector who voted for Clinton.
Colorado’s current secretary of state, Jena Griswold, a Democrat, denounced the 10th Circuit ruling but didn’t indicate if she would appeal it.
“This court decision takes power from Colorado voters and sets a dangerous precedent,” she said. “Our nation stands on the principle of one person, one vote.”
Almost immediately after Trump was declared the winner early in the morning on Nov. 9, 2016, activists such as Baca, angry about the defeat of Clinton, launched a campaign to try to pressure the 306 Electoral College members pledged to vote for Trump to vote for someone else when the electoral votes were to be cast. Trump ended up receiving 304 votes in the Electoral College, well over the threshold of 270 needed to win. Clinton received 227 votes in the Electoral College, after winning 232 in the election.