By Jim EllisAug. 26, 2019 — Reports came out late last week that the 10th Circuit Court of Appeals sitting in Denver ruled in favor of a former Colorado Elector, Michael Baca, who filed a constitutional lawsuit against the state. In the 2016 Electoral College vote, the Colorado Secretary of State removed Baca from the delegation after he informed state authorities that he would not vote for Hillary Clinton when the Electoral College met.
Thirty states, including Colorado, have a statutory requirement that the official electors, in Colorado’s case nine individuals, cast their vote for the presidential candidate who carried the state. In the 2016 election, Hillary Clinton carried the Centennial State over Donald Trump, 48-43 percent.
Baca was coalescing with other electors around the country, the so-called “Hamilton Electors,” who thought they could convince enough members in Trump states to vote for another candidate in order to force him below the 270 minimum electoral vote threshold. In the election, Trump’s victory states awarded him 306 electoral votes. Places like Colorado, however, that went for Clinton, would do Trump no damage if its electors did not carry through with the voters’ expressed desire, illustrating one of several ways that the “Hamilton” strategy was fundamentally flawed.
After Baca’s removal, he quickly filed his lawsuit arguing that his constitutional rights were violated because the state has no authority to bind its electors. Baca lost at the federal district level but now has won a 2-1 appellate decision before a three-judge panel.
What happens now? The 10th Circuit is in conflict with a previous Washington state Supreme Court ruling that came to the opposite conclusion. Thus, it is likely that the US Supreme Court will be petitioned though the Washington ruling, because it comes from a state court, is a lesser factor in the federal domain.
The Colorado elector legal action, like the Compact Coalition that is attempting to convince states holding a majority of electoral votes to agree to have their electors vote for the national popular vote winner regardless of how the individual state voted, is designed to eliminate the Electoral College’s power and change the US voting system to a straight popular vote.
The Founding Fathers created the Electoral College as a way to protect the small states and rural areas under the rationale that the major population centers would unfairly dominate a presidential election.
Could this ruling possibly lead to other changes that the proponents might not find as appealing, however? If the states have no authority to compel electors, as Baca argues, can they therefore lock their state delegate votes to national conventions in the presidential nomination process?
Currently, all states mandate their party convention delegates to vote as the state or congressional district (or state Senate district in some cases) electorates did in their respective party primary or caucus. Some states release their delegates on the second ballot, and others on the third roll call, but it is not until a fourth vote where all convention delegates become free.
This system may be tested next year at the Democratic National Convention. With multiple candidates in position to earn delegate votes and the rules not allowing for a winner-take-all system in any state or domain, yet the eventual nominee must still obtain an absolute delegate vote majority, the chances of a candidate not attaining a first ballot victory are high. Therefore, if a subsequent court ruling says that states cannot bind delegates, then the convention could conceivably fall into an open voting forum from the beginning.
Such a change would be daunting and alter every current candidate’s campaign strategy. Perhaps even more overarching, the rules would change in the middle of the game. Therefore, taken to the extreme, this week’s elector ruling may have a more wide-ranging effect than what appears on face value.