Under this decision, electors may vote for whomever they want.
Polls come out frequently that measure how many people would vote for Donald Trump in the next presidential election and how many would vote for one of the Democratic candidates. But these polls mean nothing unless they are broken down by state. United States presidents are not elected by the popular vote. Under the Constitution, the Electoral College elects the president. The Electoral College is composed of the total number of senators and representatives from each state. When you vote for a person for president, what you are actually doing is voting for an elector to cast a ballot for that candidate.
It’s possible that a presidential candidate could lose the popular vote yet win the presidency. This has happened twice in modern times. In 2000 (Bush II) and in 2016 (Trump), the loser of the popular vote won the vote in the Electoral College and became president. That’s why state-level polling is so important.
The states decide how they will choose their electors. Usually, the winner of the popular vote in a state takes all the electoral votes. Maine and Nebraska divvy out electors in proportion to the vote.
Although it is unusual, it is certainly not unprecedented for electors to vote for a presidential candidate other than the one they promised to support. This has taken place throughout US history. Such electors are called “faithless electors” or “anomalous electors.”
This happened in Colorado in the 2016 election when a Clinton elector voted for Kasich instead. The Colorado Attorney General removed the person as an elector and replaced him with a person who voted for Clinton. The elector sued the State of Colorado, saying he had a right to change his mind.
On August 20, the Tenth Circuit Court of Appeals held that the elector was free to vote as he pleased and that the Colorado Attorney General could not remove him. This was a case of first impression. No other court has so held.
The ruling makes sense, given the purpose of the Electoral College. Alexander Hamilton, one of the United States’ Founding Father, wrote described the purpose of the Electoral College:
It was desirable, that the sense of the people should operate in the choice of the person to whom so important a trust [the presidency] was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice.
It’s pretty clear that the Founding Fathers wanted a relatively small group of people to think hard about who the next president should be.
Why is any of this important? The next election will be highly contentious. The Colorado Attorney General probably will appeal this decision to the United States Supreme Court. Chances are that the Court will decide the issue before that election. If the Tenth Circuit’s decision stands, electors will be free to choose whomever they want for president regardless of whom they earlier promised to support. If electors are free to vote for anyone they want, then the staid Electoral College could become raucous.
Mr. Verner is a member of the State Bar of Texas. He is Board Certified in Civil Trial Law and Family Law by the Texas Board of Legal Specialization. In his alter ego, Dr. Verner also holds a Ph.D. in Public Policy & Political Economy.
Originally published at https://losethelegalese.com.