DENVER, COLORADO – A federal court decision that says members of the electoral college are not bound by the popular vote of their state would have cost Hillary Clinton one of the electoral college votes she won in Maine. That would have further diminished her meager electoral college performance of just 227 votes in 2016.
The decision from the United States Court of Appeals Tenth Circuit says that electors are not bound by the popular vote in their state.
The decision was rendered in the case of three plaintiffs in
Colorado who had served as electors in the 2016 election. One of the three,
Michael Baca, voted for John Kasich instead of Hillary Clinton, who won
Colorado’s popular vote.
Colorado Secretary of State then removed Mr. Baca and replaced
him with an elector that voted for Hillary Clinton. After witnessing the
Secretary of State’s action, Polly Baca and Robert Nemanich, who also planned
to vote for Kasich, voted for Hillary Clinton rather than be removed and
On August 20th, the court ruled that Presidential
electors cannot be bound by the popular vote in their state. Citing Article II
and the Twelfth amendment, the court said, “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
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. Those constitutional provisions grant states the plenary power to appoint its electors. But once that appointment process is concluded, the Constitution identifies no further involvement by the states in the selection of the President and Vice President.”
the court decision says that the limitation on a state’s power stops at the
plenary power to appoint its electors and that the state has no power to remove
and replace electors, nullifying the action of the Colorado Secretary of State.
A situation similar to the Colorado incident played out in
Maine. One of Maine’s Presidential electors cast a secret ballot for Bernie
Sanders rather than voting for Hillary Clinton. That vote was quickly ruled out
of order and Bright was instructed to cast another vote, which he then cast for
When the voting was completed, Bright said that his vote was
ruled out of order by the Chair of the proceedings on the advice of Secretary
of State Matt Dunlap.
Had the vote for Bernie Sanders been officially counted, it
may have offered a modicum of justice for his supporters in Maine. Sanders won
the Democratic Party caucuses across the state of Maine by a wide margin, defeating
Hillary Clinton by nearly 30 points.
Yet Sanders saw his support from Maine’s delegation to the
DNC Convention weakened by the DNC’s arcane delegate process, diminishing the
impact of his victory in Maine and ultimately handing the nomination to
The Tenth Circuit’s decision also could strike a fatal blow to the efforts of supporters of a movement to abolish the electoral college through a national popular vote scheme.
The national popular vote, which requires electors to vote
for the winner of the most votes nationally regardless of how their state
votes, essentially uses a change in state law to attempt to force electors to
follow the results of the national election instead of the election results in
their own state.
If the decision from the Tenth Circuit stands, it is unlikely
that national popular vote supporters could use state law to ensure fidelity to
national results when the court says a state cannot mandate fidelity to state
In Maine, the national popular vote scheme was one of the
most heated battles of the recent legislative session.
Speaker Sara Gideon, a supporter of the effort to give away
Maine’s electoral college votes to the winner of the national popular vote,
brought the bill forward in the Maine House seven times for roll call votes. Six
of those votes failed and ultimately the bill died in non-concurrence between
the Maine House and Senate.