The U.S. appeals court’s ruling in Denver Tuesday slowed efforts by progressives to eliminate the Electoral College and replace it with a simple popular vote.
The court said Electoral College members can vote for the presidential candidate of their choice and aren’t bound by the popular vote in their states.
The 10th U.S. Circuit Court of Appeals held that the former Colorado secretary of state violated the Constitution in 2016 when he removed an elector and canceled his vote because the elector refused to cast his ballot for Democrat Hillary Clinton, who received the popular vote in that state.
The ruling applies only to Colorado and five other states in the 10th Circuit: Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
The split decision by the Denver appeals court stated: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. 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.”
The ruling continued, “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.”
The court concluded that once electors assume their role in the Electoral College, they are federal employees and serve a “federal function” outside of state control.
Colorado’s current secretary of state, Jena Griswold, criticized the ruling but did not say if she would appeal.
The Electoral College system makes it so when voters cast a ballot for president, they are actually choosing members of the Electoral College, called electors, who are pledged to that presidential candidate. The electors then choose the president.
Electors usually vote for the popular vote winner, and some states have laws requiring them to do so.
Democrats have traditionally led in heavily populated states like California and New York, and have long fought against the Electoral College. States receive electoral votes equivalent to their number of congressional districts plus senators, which allows less populous states to have more impact than they would under a simple popular vote system, preventing a scenario where only a handful of states decide every election.
The 2020 census is expected to result in some change in Electoral College numbers, including an increase in electoral votes for traditionally GOP-loyal states like Texas.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) recently wrote on Twitter about her opposition to the Electoral College.
“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 wrote.
Former Governor of Arkansas Mike Huckabee responded to Ocasio-Cortez’s dismissal of the Electoral College, saying on his show that the electoral college forces candidates to focus on small states to be able to arrive at the 270 electoral votes needed to win.” He said if there was no Electoral College, presidential candidates could potentially take the money they raised and only campaign in the highly populated states.
“Presidential candidates would do two things, and only two things: go to high-dollar donor events and hobnob with the swells who have all the money, and then they would take that money and they would spend it advertising in just those four states. Most of America would never see a candidate, would never hear an ad.”
Ocasio-Cortez is not the only Democrat to call for the elimination of the Electoral College. Many other Democrats have also called for it to be abolished, such as Democratic presidential hopefuls Beto O’Rourke and Sen. Elizabeth Warren (D-Mass.).
Hans von Spakovsky, a former member of the Federal Election Commission, said during an interview with Intercessors for America that the Electoral College system was devised at America’s founding to balance the competing interests of large and small states, and to temper the “tyranny of the majority.”
“It prevents candidates from winning an election by focusing only on high-population urban centers (the big cities), ignoring smaller states and the more rural areas of the country—the places that progressives and media elites consider flyover country,” he said.