RULING ALLOWS ELECTOR DISCRETION BUT MIGHT IMPEDE EFFORT TO CIRCUMVENT ELECTORAL COLLEGE

Donald Trump won the Presidency in 2016 despite being trounced by Hillary Clinton in the popular vote.

Thanks to the Electoral College, the profoundly undemocratic body that actually elects our Presidents and Vice-Presidents, Trump’s slight margin of victory in a few key states outweighed the millions more votes cast nationwide by those who preferred Clinton.

The Electoral College has been enshrined in our system from the start, in Article II, section 1, paragraph 3 of the Constitution. It was modified in 1804, with ratification of the Twelfth Amendment, which requires separate votes for President and Vice-President.

Most years, the results of the Electoral College vote match up with the popular vote.  But after 2016, when it thwarted the will of the people for the second time in 16 years (and for two of our last three Presidents), many people realized that we must do something about it if we want to make sure that the person who wins the most votes is the one who becomes President.

Abolishing it is unrealistic because it requires amending the Constitution, which takes a two-thirds vote in the House and ratification by three quarters of the states. The smaller states that enjoy outsize political influence under the present system would never go along with it.

Many constitutional amendments that would eliminate the Electoral College have been proposed over the past two centuries without success. The one that came closest was House Joint Resolution 681 in the 91st Congress (1969-1971), introduced by Senator Birch Bayh, D-IN, and Congressman Emanuel Celler, D-NY, prompted by the results of the 1968 election. Republican Richard Nixon won with 301 Electors’ votes over 191 for Democrat Hubert Humphrey, even though Nixon had only 511,944 more popular votes. (The other 46 electoral votes went to Alabama Governor George Wallace, a Democrat running on the American Independent Party line.)

The Bayh-Celler amendment passed the House by the requisite two-thirds margin (339 to 70) but was filibustered in the Senate and eventually dropped after two cloture votes to end the filibuster fell short. A Sept. 18, 1970 New York Times article said of the filibustering Senators: “It was almost entirely a coalition of Southerners and Conservatives from small states who had protested that abolishing the Electoral College would reduce their states’ political influence.”

Presently, there is at least one proposed amendment pending in Congress, H.J. Res. 7, that would eliminate the Electoral College and provide for direct election of the President and Vice-President. Since it was introduced on January 3 by Rep. Steve Cohen, D-TN, there has been no action on it. Its 10 cosponsors include Rep. Bill Pascrell Jr., D-NJ-9.

The National Popular Vote Interstate Compact

Some states are attempting a work-around, the National Popular Vote Interstate Compact, which would retain the Electoral College while ensuring that the will of the people prevails in Presidential elections.

It has been making headway but a recent federal court win by a former Elector from Colorado who challenged the state’s right to dictate how he voted now threatens to undermine the effort.

The way it works now is that there are 538 Electors nationally, with each state’s contingent equal to the combined number of its Congressional representatives and Senators.  That’s 435 plus 100 plus three Electors for the District of Columbia.

Electors’ names do not appear on the ballot but when voters cast their votes for President and Vice-President, they are not actually voting for those candidates but  picking a slate of Electors who are pledged to vote for either the Democrat or Republican candidates for President and Vice-President.

Following the election, the Electors for each state meet on the first Monday after the second Wednesday in December to cast their votes, typically on a winner-take-all-basis, for the candidate who won the popular vote in that state. Only Maine and Nebraska do it differently, on a district-by-district basis with the statewide winner getting the two votes allocated for Senators.

The upshot is that, in 48 states, the candidate who gets the most votes, even by the smallest of margins, gets all of that state’s Electoral votes.

The candidates with the most Electoral votes become President and Vice-President, but only if they have a majority, at least 270 votes. If no candidate reaches that threshold, the election is thrown into the House of Representatives, which chooses the next President by majority vote from the top three vote-getters. (That has happened only three times: in 1800 when it took the House 36 rounds of voting before choosing Thomas Jefferson over Aaron Burr; in 1825, when it picked John Quincy Adams over Andrew Jackson; and again in 1877, when Rutherford Hayes was chosen over Samuel Tilden.)

The National Popular Vote Interstate Compact would circumvent the Electoral College through laws passed by individual states that require all the Elector votes for that state to go to the winner of the national popular vote, rather than the winner of the popular vote in that state. It only kicks in when enough states have become part of it that their combined Electoral College votes are sufficient to win the Presidency.

First proposed in 2001, shortly after George W. Bush became President despite receiving more than half a million fewer votes than Al Gore, and launched in 2006, it gained renewed impetus after the 2016 election.

As of July 2019, 15 states and the District of Columbia, with a combined 196 Electoral College votes, have enacted laws.  New Jersey with its 14 votes, was the second state to do so (after Maryland), in 2008. Other states that are part of it include New York, California, Connecticut and Massachusetts.  Four states have joined this year alone—Colorado, Delaware, New Mexico and Oregon.

That momentum might now be interrupted by the landmark decision in Baca v.  Colorado Department of State, where the U.S. Court of Appeals for the Tenth Circuit held on August 20 that Electors are not subject to the constraints placed upon them by the states but may vote for someone else.

If states cannot dictate to Electors that they must vote for the state popular vote winner, it is hard to see how states can compel them to vote for the national popular vote winner. There seems to be no principled distinction.

If that reading of Baca is correct, even if most Electors do continue to vote as instructed by the state, the fact that some portion of them will take advantage of their newly declared freedom to vote for a different candidate would make the Interstate Compact unreliable and thus unworkable.

Faithless Electors

Ironically, the Baca case grew out of the same frustration with the Electoral College that underlies the Compact.

Plaintiff, Michael Baca, then a graduate student at Northern Arizona University, was a registered Democrat who had supported Bernie Sanders.

He became an Elector on November 8, 2016, when Hillary Clinton and Tim Kaine won the state’s popular vote, with 48.2% to Trump’s 43.3%, a margin of almost 5%.

A Colorado law, § 1-4-304(5), required that Electors vote for the candidate “who received the highest number of votes at the preceding general election in this state.”  Under that law, Clinton was entitled to all nine of Colorado’s Electoral College votes though, nationally, she did not have enough to win the Oval Office and Trump did.

Baca had another idea—to be a so-called Faithless Elector, also referred to as a Hamilton Elector, after an essay written by Alexander Hamilton. The essay, from 1788, is one of the Federalist Papers, written by Hamilton and two other Founding Fathers—James Madison and John Jay—to promote ratification of the U.S. Constitution.

Hamilton’s Federalist Paper No. 68, entitled “The Mode of Electing the President,” sets forth his thoughts on why the Electoral College is preferable to direct election of the President by the popular vote. The 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.”

Hamilton thought Electors would help guard against “cabal, intrigue, and corruption” and “the desire in foreign powers to gain an improper ascendant in our councils.”  Given what was known even then about Russian meddling in the 2016 Presidential election, it is understandable why many believed, or at least hoped, that the Electoral College could save us from a Trump presidency.

In the aftermath of Election Day 2016, a “Hamilton Electors” movement sought to induce at least 37 Trump Electors to switch their votes to a more moderate Republican, bringing his total down to 269, just below the 270 majority needed to win. That would have thrown the election into the House of Representatives, as happened in 1824, when the House chose John Quincy Adams as president over Andrew Jackson, who had won the popular vote and had the most Electoral College votes but fell short of 270.

Others thought there was a possibility of getting 28 or more Trump Electors to switch their votes to Hillary, handing victory to her.

Both of those ideas were very long shots but there seemed to be some  slim hope of success. After all, Hillary had beaten Trump by nearly 3 million votes. And the supposed reason for creating the Electoral College was to act as a buffer and prevent someone truly unqualified from becoming president. If there was ever a juncture at which some unorthodox intervention seemed necessary, 2016 was that year.

There were multiple online petitions. One of them, which called on “conscientious electors” to “protect the Constitution from Donald Trump and to support the national popular vote winner,” garnered nearly 4.9 million signatures, including mine.

Baca hoped that Electors from both parties around the country could be persuaded to unite in a grand compromise: voting instead for John Kasich, a moderate Republican and former Ohio Governor, who had not even been on the ballot in the general election. Though a candidate during the 2016 Republican primary, Kasich had dropped out of the race in May 2016 after falling far behind Trump and failing to win a single state primary, other than Ohio’s.

Following the election, another Colorado Elector, Robert Nemanich, contacted Colorado’s Secretary of State, Wayne Williams, to ask what would happen if an Elector did not vote for Clinton and Kaine. He was told the Elector would likely be removed and replaced and would also likely face perjury charges.

Nemanich and a third Colorado Elector named Polly Baca then sued in federal court to block enforcement of the state law on the ground that it violated Article II of the Constitution and the Twelfth Amendment. In Baca v. Hickenlooper, the U.S. District Court for Colorado denied the request on December 12, 2016, and the Tenth Circuit subsequently denied an emergency injunction pending appeal.

Meanwhile, Williams had filed a case in state court seeking guidance on Colorado’s law regarding Electors. The answer he got from the Colorado court was that an Elector’s failure to vote for Clinton and Kaine would constitute a “refusal to act” under the law, necessitating immediate replacement. The Colorado Supreme Court denied a petition for immediate review.

When the Electors met on Dec. 19, 2016 to cast their votes, Williams had them take a revised oath affirming that they would vote consistently with the results of the state’s popular election and he warned that any Elector who violated the oath might be subject to felony perjury charges.

Feeling “intimidated and pressured to vote against their determined judgment,” Nemanich and Polly Baca cast votes for Clinton and Kaine but Michael Baca crossed the name Hillary Clinton off the ballot and wrote in “John Kasich.” Williams responded by removing him as an Elector, refusing to count his vote, and replacing him with someone else who cast a vote for Clinton. Baca did attempt to vote for Kaine as Vice-President but Williams refused to count his vote and referred him to the Colorado Attorney General for a criminal investigation.

Nemanich and Polly Baca dropped their lawsuit and filed a new one which Michael Baca joined and which culminated in the 10^th Circuit decision.

The Case of Baca v. Colorado

First, though, the three Electors lost in the lower court. U.S. District Judge Wiley Daniel of the District of Colorado dismissed the case for failure to state a claim on which relief can be granted based on his view that the U.S. Constitution does not prohibit states from binding electors to vote for the candidate who wins the state’s popular vote. Daniel, who was appointed to the court in 1995 by President Bill Clinton, also held the Electors lacked standing to sue over the issue.

On appeal before a three-judge panel of the 10^th Circuit, a two-judge majority found that Baca, but not the others, had standing because his removal as Elector and the nullification of his vote satisfied the injury-in-fact requirement.  They then concluded that, although the states have broad power in how they appoint Electors, they cannot, once voting begins, interfere: to remove an Elector “who exercises discretion in casting votes”; disregard the removed Elector’s vote; or appoint a new Elector to cast a replacement vote. The Constitution’s detailed instructions for the process—the Electors vote for President and Vice-President, list all the votes cast, certify that list, and send it to the President of the Senate–leave no room for such state action, said the judges–Carolyn Baldwin McHugh (a 2014 Obama appointee) and Jerome Holmes (a 2004 George W. Bush appointee).

The dissenter, Judge Mary Beck Briscoe (appointed in 1995 by Bill Clinton) would have affirmed the dismissal on the ground that the claims were moot.

One of the grounds for the majority holding were the historical and contemporary definitions of the terms “elector,” “vote,” and “ballot” as used in the Constitution, which all imply the right to make a choice or voice an individual opinion. “We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.”

Colorado emphasized the longstanding practice of electors complying with the will of the people as supporting its position that Electors must vote for the popular vote winner. The majority judges, however, said that practice did not dictate the result because it could not overcome the allocation of power in the Constitution or the history of anomalous votes, which have all been counted by Congress.

The first “Faithless Elector, Samuel Miles, voted for Thomas Jefferson instead of John Adams in 1796, and there have been 166 more of them since then, said the court, citing the Fair Vote web site.

In fact, the Baca majority judges were not aware of a single instance in which Congress has failed to count an anomalous vote, or in which a state—before Colorado—attempted to remove an Elector in the process of voting, or to nullify a faithless vote.

Only once, did Congress even debate whether to count an Elector’s vote, the court observed. That occurred in 1969, when six Senators and 37 Representatives objected to counting a vote from North Carolina because the elector voted for George Wallace for President and Curtis LeMay for Vice President, despite Richard Nixon and Spiro Agnew winning the popular vote in that state. After “significant debate,” the House and Senate both voted to reject the objection and count the Elector’s votes.

The court also discussed the fact that in 2016, Congress counted 13 anomalous votes cast by Faithless Electors in three states. There were three from Washington State for Colin Powell plus another from Washington for Faith Spotted Eagle, a South Dakota Democrat who is member of the Yankton Sioux Nation; one from Texas for John Kasich and another for former U.S. Senator Ron Paul; and one from Hawaii for Senator Bernie Sanders.  The other six were votes for Vice-President: Electors from Washington State cast votes for Elizabeth Warren, Maria Cantwell, Susan Collins and Winona LaDuke. Warren had a second vote from Hawaii and Carly Fiorina had one from Texas.

By counting those votes, Congress acted consistently with the treatment of every vote by a Faithless Voters since the creation of the Electoral College, the court noted. “This uninterrupted history of Congress counting every anomalous vote cast by an elector weighs against a conclusion that historical practices allow states to enforce elector pledges by removing faithless electors from office and nullifying their votes.”

Colorado also tried to argue that the states’ historical practice of using short-form ballots –containing only the names of candidates and not the Electors –was “incompatible with electors exercising independent discretion” because “voters have no basis for judging the prospective electors’ qualifications or trustworthiness, let alone uncovering their identities,” and understandably believe they are casting their ballots for the named presidential and vice-presidential candidates. In rejecting that position, the majority said Colorado was essentially arguing that because states have allowed “voters to believe they are voting directly for presidential and vice-presidential candidates, electors are now bound to make that misperception true.”

The appeals court found further support for its holding in several “authoritative sources,” including Hamilton’s Federalist Paper No. 68.

It concluded: “Even where an elector violates a state-required pledge to vote for the winners of the state popular election, there is nothing in the federal Constitution that allows the state to remove that elector or to nullify his votes. And in the absence of such express authority, the states may not interfere with the electors’ exercise of discretion in voting for President and Vice President by removing the elector and nullifying his vote. . . .  Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector. Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote binding provision in § 1-4-304(5). Mr. Baca has therefore stated a claim for relief on the merits, entitling him to nominal damages.”

At first glance, the Baca ruling seems like a win for those who want to make sure that Presidents are chosen by the popular vote because it frees up individual Electors who share that goal.

But, in essentially making Electors free agents, whose votes can neither be prescribed nor predicted, it jeopardizes the goal and operation of the Interstate Compact. For one thing, the Compact can no longer safely take effect at 270 Electors because any number of those Electors could independently decide to vote for someone besides the national popular vote winner.

Another potential concern is that it opens the door to bribery of Electors, especially in close contests where paying off a few individual Electors, who are no longer constrained to vote a certain way, could swing the election.

There is also the question of whether Congress can legislate to require Electors to vote for the state popular vote winner as a matter of federal law.

Future Electoral Inversions Likely

The situation that prompted the Compact and the actions of Baca and the other Faithless/Hamilton Electors is likely to recur, according to a just-released working paper from the National Bureau of Economic Research (NBER).

The paper, which looks at the history of “Electoral College inversions,” where the popular vote winner loses the election as occurred in 2016, modeled data going back to 1836 to calculate the likelihood of an inversion and which party would benefit.

Such inversions have occurred only four times but with two of our last three presidents—Trump and George W. Bush (in 2000). The other times were: 1876, where Rutherford Hayes squeaked by Samuel Tilden (who had 50.9% of the popular vote to Hayes’ 47.9%) by a single Elector’s vote (185 versus 184) and was then voted in by Congress); and 1888, where Benjamin Harris, with 233 electoral votes, wound up in the White House, rather than Grover Cleveland who had 168, despite having over 100,000 more popular votes.

Hillary Clinton had the largest popular vote margin by far of popular vote winners who lost the Electoral College vote.

The authors of the paper determined that such inversions are not statistical flukes but are likely to occur in more than 30% of elections where the margin of victory is 2% or lower, with the likelihood rising to 40% where the margin is 1% or lower.

They predict that, going forward, inversions will happen more often than in the past. “If elections continue to remain close—as they have been in recent years—then inversions will occur with substantially higher frequency than their overall historical mean.”

They also found that Democrats and Republicans do not benefit equally from inversions or as they phrase it, the “probabilities of inversion are asymmetric across parties.”  In what they refer to as the “modern period,” defined in their data as 1988 to 2016, Republicans had a 65% likelihood of winning where they narrowly lost the popular vote, versus only 35% for Democrats.

They attribute this “partisan asymmetry” to states’ unequal Electoral College representation combined with unequal “strength of partisan alignment”—that Democrats have tended to win large states by large margins and lose them by small margins.

To reduce inversions, they suggest a policy of awarding ballots proportionally across the candidates rather than winner-take-all and, to a lesser extent, removing the two Senator-linked ballots per state so that each state has the same number of Electors as House members.