(PM) — A federal appeals court decreed late Tuesday that presidential electors who cast the actual ballots for president and vice president are open to voting as they wish and cannot be obligated to follow the results of the popular vote in their states.
The decision could furnish a single elector the power to determine the outcome of a presidential election — if the popular vote ends up in an apparent Electoral College tie.
It hasn’t been an issue in American political history because when an elector declines to follow the results of a state’s popular vote, the state clearly throws the ballot out. Tuesday’s ruling changes that, stating that states can no longer throw a “faithless elector” ballot out.
The decision, from a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, is a triumph for Micheal Baca, a Colorado Democratic elector in 2016. Under state law, he was compelled to cast his ballot for Hillary Clinton, who won the state’s popular vote. Instead, he crossed out her name and wrote in John Kasich, a Republican, then the governor of Ohio.
The secretary of state dismissed Baca as an elector, rejected his vote and produced another elector who voted for Clinton. In a 2-1 decision, the appeals court said the revocation of Baca’s vote was unconstitutional.
When voters go to the polls in presidential races, they actually cast their votes for a slate of electors chosen by the political parties of the nominees. States are free to determine their electors however they want, Tuesday’s ruling said, and can even order electors to guarantee their loyalty to their political parties.
But once the electors are appointed and report in December to cast their votes as members of the Electoral College, they are performing a federal function, and a state’s authority has terminated. “The states’ power to appoint electors does not include the power to remove them or nullify their votes,” the court declared.
Because the Constitution includes no requirement for electors to obey the desires of a political party, “the electors, once appointed, are free to vote as they choose,” assuming that they cast their vote for a legally qualified candidate.
A sum of 30 states have laws that bind electors, expecting them to cast their votes for whichever candidate won that state’s popular vote. But the laws are flimsy, providing only trivial penalties for what are known as “faithless electors” who refuse to submit to the popular vote.
The Supreme Court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the popular vote. But the justices have never said whether it is constitutional to enforce those pledges.
Legal scholars said Tuesday’s ruling was the first from a federal appeals court on the issue of faithless electors. It applies immediately to the six states of the 10th Circuit: Colorado, Utah, Wyoming, Kansas, Oklahoma, and New Mexico.
The federal court ruling disputes with a decision from Washington state’s Supreme Court in May, which stated electors must follow the results of the popular vote. “The power of electors to vote comes from the state, and the elector has no personal right to that role,” the court stated.
Lawyers from the nonprofit organization Equal Citizens, which represented the Washington state electors and Baca in Colorado, stated they will appeal the Washington ruling to the Supreme Court.
If the Supreme Court fancies to take up the dispute, it would have time to rule on the issue before the Electoral College meets in December 2020 to cast the official vote for President.