7 ms·

Electoral College Members Can Defy Voters’ Wishes, Court Rules

55 points by johnny313 7y ago

lettergram 7y ago
Wasn’t that part of the original intent?
- VectorLock 7y ago
  I think we can pretty safely retire the debate on if it would serve its intended purpose, at this point.
  - lettergram 7y ago
    I disagree, Trump wasn’t a president that should really trigger the failsafe of the elector college. That’d be more if we were electing someone that was a clear threat. Trump was and is not a clear threat to Americans. He’s pretty incompetent and honestly still don’t know if he’s worse than the alternative(s).
- kuschku 7y ago
  It's original intent requires a world in which news took weeks to travel, and communication was too slow. But that's not tge world we've got anymore.
  - RyanAF7 7y ago
    A world that moves faster is absolutely the original intent of the EC which is more essential now than ever before. Rule by a demagogue is the primary weakness of a democracy and it's a pretty bad one at that.
    - kuschku 7y ago
      That's already what congress is for, the US system just gives too much power to the president, while having it a directly elected position, so it has to have this complicated system which is entirely broken. Parliamentary Democracies have fared much better in recent times.
      - RyanAF7 7y ago
        Yes, thats what congress is for in the legislative branch. In the executive branch the EC provides that function. You're forgetting that we are Constitutionally allowed 1 congress rep per 30k. Right now it's at 1 per 790k. Thats already demagogue territory. Also, forgetting the 17th Amendment and the original intent of Senators. You have a very narrow way of rationalizing the destruction of an actual bulwark against tyranny.
- spamizbad 7y ago
  Divining original intent is weird because it's from an era where not even adult white males had universal suffrage. Prior to the mid 19th century, nearly all states required you to be a land-owner to vote. I've always viewed the electoral college as an enlightenment-era hack to work around a scenario where one state would "liberalize" suffrage to garner outsized influence during a national election. If this was 1790, non-land owners deciding an election would be the feared "tyranny of the majority" the founders sought to prevent; and that's not even counting suffrage for women and non-whites. At least in theory (putting aside any voter suppression efforts), the US today has near universal suffrage for all adults, with the only remaining restrictions being placed on felons (of which we have many). So it really doesn't make sense: We functionally have the popular vote, but we have this weird legacy layer on top that, in 2000 and 2016, selected someone who lost the popular vote.
  - ddingus 7y ago
    I think the person with the popular vote should have lost. The EC performed to spec in my opinion. Nobody, myself included, likes that outcome, but the truth is Clinton didn't do the work needed to win the election. Now, she had a number of challenges, but she was also running to sell the world on the idea of her being the leader too. No excuses. I feel strongly about that. The primary reason I feel that way is she flat out could have won. A shift in campaign strategy, something her own staff urged her to do many times as they saw the numbers, would have sealed the deal. Visit Wisconsin, do some real work in the Rust Belt, and talk about jobs, not just education, or other similar things that put the fault on those who are expected to vote, and she would have won easily. What actually happened was a run on popular vote totals. I'm told that was to increase the legitimacy of her win, and lay the foundation for a mandate type win. Ok, that's all fair, valid, reasonable, but for the fact that the basic work all that is predicated on simply was not done. The EC more or less forces that work to get done too. I'm fine with the EC as it exists today. An awful lot of the EC discussion is driven by a bad outcome, and I am just not sure that makes sense, or at least it does not make sense without a super honest, raw analysis of what actually did happen.
    - cybersnowflake 7y ago
egdod 7y ago
Faithless electors are hardly a new phenomenon. https://en.wikipedia.org/wiki/Faithless_elector https://en.wikipedia.org/wiki/Faithless_elector
- em3rgent0rdr 7y ago
  Exactly. This is how it has basically been for the past 230 years. The ruling in no way "kicks at the foundation of how America chooses presidents". A few states recently enacted an unconstitutional law to attempt to void the faithless electors vote, and all this ruling does is clarify that those state laws were indeed unconstitutional.
  - AnimalMuppet 7y ago
    Almost. If this were a Supreme Court decision, I would agree with you. But it's "only" the 10th Circuit. It doesn't apply to most of the country unless the Supreme Court agrees or unless and until the other districts adopt the same reasoning when such a case comes before them.
  - Pinckney 7y ago
    I agree that the 12th amendment doesn't allow states to void the faithless elector's vote, but it would be constitutionally permissible for them to criminalize faithless voting, would it not?
    - dctoedt 7y ago
      > it would be constitutionally permissible for them to criminalize faithless voting, would it not? No, according to the court's opinion ("slip opinion"), starting at p.73 of the PDF [0]. I've posted excerpts in a top-level comment. [0] https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf
forgingahead 7y ago
I really find it amusing that it was Democrats accusing Trump of not accepting the outcome of an election....
- duxup 7y ago
  Is that what you think this story is about?
- Fjolsvith 7y ago
  I still don't understand why they call Trump a populist president when [HRC] had the bigger populist vote count.
  - krustyburger 7y ago
    I think you may be confusing the words populist and popular.
  - cybersnowflake 7y ago
    If Libs are SO concerned that the Will of the People must always be heard can we count on their support to bring back popular initiatives like CA Prop 187 that Judges struck down,have the census count citizens so that Blue States can't improperly gain Legislative seats, crack down on ballot harvesting (when it benefits them) and generally reverse all the things Libs have done that wouldn't have won in a straight majority vote of the population? No?
    - AngryData 7y ago
      Why would the census count citizens? We already know how many citizens we got, every US citizen has documentation on their existence. If you don't exist on paper already, you aren't a citizen as far as the US government is concerned. The census is for one thing, counting the number of people actually living in each area and the very basics of what conditions they live in. Being a citizen doesn't change whether you exist or not.
      - 7y ago
AnimalMuppet 7y ago
It's the 10th Circuit Court of Appeals, so it's not binding on the rest of the country. It would be good if this went to the Supreme Court and was ruled on while it's just one elector, and isn't going to actually change an election. (Lawrence Lessig is on the side that won this ruling. He's trying for a Supreme Court decision, one way or the other. But the only way to get that is if the other side appeals this ruling, and the Supreme Court agrees to hear the case.)
cybersnowflake 7y ago
Whats the point of having actual human electors if they can't be faithless? Couldn't the Founding Fathers just say tally up the electoral votes if a mechanical transition from popular to electoral votes was desired?
- ColanR 7y ago
  That was the precise idea - and in an age when riding from the states to DC could take a month or more, the mechanism for that tally was electors who physically travelled to DC, and were sworn to vote as they were directed by the populace.
  - microcolonel 7y ago
    > ...sworn to vote as they were directed by the populace. And probably would've been beaten to death or hanged in public for the wrong form of dereliction of that duty. ;- )
    - imustbeevil 7y ago
      Which could also be said for electors voting against their local interests in favor of their state's interests. Who's the derelict if everyone who lives within a 50 mile radius votes one way but the state goes another? That's the point of electors; states getting all of them for free should be the outlier.
      - microcolonel 7y ago
        Hence the careful wording “the wrong form”. Just like other middleman, the elector is in a tough spot.
  - cybersnowflake 7y ago
    Thats pretty odd to specify Electors who would vote then. Could have just said tally up the votes into EC votes and then the same man in a funny wig would still be dispatched to report in. Seems a pretty stupid convoluted way to go about it if what you're saying is correct
dctoedt 7y ago
It's worth noting that the decision — by a three-judge panel of the appellate court — is only an interim decision. In essence, the trial court took a shortcut — in software terms, an early return or -exit: The trial judge concluded that, when Colorado's secretary of state removed a member of the Colorado delegation to the Electoral College (for having voted for Kasich instead of Clinton), the removed "elector" had no legal right to sue for nominal damages because the Colorado secretary of state had the legal authority to remove the elector. The trial judge therefore summarily tossed out the removed elector's lawsuit. The appellate court panel concluded that the trial judge got the law wrong, and therefore the removed elector did have the right to sue for nominal damages. The panel sent the case back to the trial court so that the lawsuit could (in theory) proceed normally. The state has the right to appeal further, to the entire appellate court sitting "en banc" and/or to the Supreme Court. Here are some excerpts from the three-judge appellate panel's opinion (which I find compelling, incidentally): "[T]he Supremacy Clause is broader than preemption; it immunizes all federal functions from limitations or control by the states." Slip op. at 75 (citation omitted). "Unlike the President appointing subordinates in the executive department, states appointing presidential electors are not selecting inferior state officials to assist in carrying out a function for which the state is ultimately responsible. Presidential electors exercise a federal function—not a state function—when casting their ballots. Burroughs, 290 U.S. at 545. When undertaking that federal function, presidential electors are not executing their appointing power's function but their own." Id. at 82-83. "As the text and structure show, the Twelfth Amendment allows no room for the states to interfere with the electors’ exercise of their federal functions." Id. at 86. "Dictionaries from the relevant period support Mr. Baca’s contention that the drafters of the Twelfth Amendment intended electors to exercise discretion in casting their votes for President and Vice President." Id. at 88. "As these sources reflect, the definitions of elector, vote, and ballot have a common theme: they 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." Id. at 90 (footnote omitted). "In summary, the text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice." Id. at 93. "Although we concur with [Colorado's] review of historical practice [of elector pledges], we cannot agree that these practices dictate the result the Department seeks. First, and most importantly, the practices employed—even over a long period—cannot overcome the allocation of power in the Constitution. McPherson, 146 U.S. at 35–36. Second, there is an opposing historical practice at play: a history of anomalous votes, all of which have been counted by Congress." Id. at 99. "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." Id. at 101. [0] https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf
jdlyga 7y ago
The problem with the system is that it's not one person one vote. If you're in New York, your vote is basically worthless. And it shows. You barely ever see presidential election ads on TV, or get any robocalls. Meanwhile, people in swing states are inundated.
cmurf 7y ago
The party system has completely perverted the intent of the Electoral College, most centrally by populating it with party loyalists, the worst possible people on earth for this task. Federalist 68 says Electors were to be deliberative people, people chosen for this task, and not to any preestablished body. Electors chosen from the general mass by their fellow citizens will best be able to carry out "complicated investigations". There is no complication or investigation in the current process! It's 180 degrees from Federalist 68. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. The present system lends itself directly to blackmail because those with all the money both choose Electors, and are Electors. They are not chosen from the general mass, they are not chosen by the people. And further: They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; What persons could possibly be more of a prostitute than party loyalists? We would be better off if the Electors were randomly selected from the general population, minus the expressly listed people in Federalist 68: politicians or other person holding a place of trust or profit. https://avalon.law.yale.edu/18th_century/fed68.asp https://avalon.law.yale.edu/18th_century/fed68.asp
- jfengel 7y ago
  Party loyalists are the opposite of prostitutes. Prostitutes can be bought. Party loyalists are True Believers. They don't make a lot of money, and they spend years refining their messages with each other. They have a sincere belief in what they're doing, and believe it to be the best way to run a country. They may well be wrong, stupid, or even malignant. They certainly have some strange bedfellows: winning elections or votes means crossing that 50% level, which requires making friends with people whose interests are only partially aligned with yours (as opposed to the people whose interests are diametrically opposed to yours). Their loyalty is at least partly sunk-cost fallacy: it takes a long time to be a party insider and they can't just hop over to any other party without losing those years of trust built up. But what they aren't, is prostitutes. For better or worse, they believe.

55 points by johnny313 7y ago

lettergram 7y ago

Wasn’t that part of the original intent?

VectorLock 7y ago
I think we can pretty safely retire the debate on if it would serve its intended purpose, at this point.
- lettergram 7y ago
  I disagree, Trump wasn’t a president that should really trigger the failsafe of the elector college. That’d be more if we were electing someone that was a clear threat. Trump was and is not a clear threat to Americans. He’s pretty incompetent and honestly still don’t know if he’s worse than the alternative(s).
kuschku 7y ago
It's original intent requires a world in which news took weeks to travel, and communication was too slow. But that's not tge world we've got anymore.
- RyanAF7 7y ago
  A world that moves faster is absolutely the original intent of the EC which is more essential now than ever before. Rule by a demagogue is the primary weakness of a democracy and it's a pretty bad one at that.
  - kuschku 7y ago
    That's already what congress is for, the US system just gives too much power to the president, while having it a directly elected position, so it has to have this complicated system which is entirely broken. Parliamentary Democracies have fared much better in recent times.
    - RyanAF7 7y ago
      Yes, thats what congress is for in the legislative branch. In the executive branch the EC provides that function. You're forgetting that we are Constitutionally allowed 1 congress rep per 30k. Right now it's at 1 per 790k. Thats already demagogue territory. Also, forgetting the 17th Amendment and the original intent of Senators. You have a very narrow way of rationalizing the destruction of an actual bulwark against tyranny.
spamizbad 7y ago
Divining original intent is weird because it's from an era where not even adult white males had universal suffrage. Prior to the mid 19th century, nearly all states required you to be a land-owner to vote. I've always viewed the electoral college as an enlightenment-era hack to work around a scenario where one state would "liberalize" suffrage to garner outsized influence during a national election. If this was 1790, non-land owners deciding an election would be the feared "tyranny of the majority" the founders sought to prevent; and that's not even counting suffrage for women and non-whites. At least in theory (putting aside any voter suppression efforts), the US today has near universal suffrage for all adults, with the only remaining restrictions being placed on felons (of which we have many). So it really doesn't make sense: We functionally have the popular vote, but we have this weird legacy layer on top that, in 2000 and 2016, selected someone who lost the popular vote.
- ddingus 7y ago
  I think the person with the popular vote should have lost. The EC performed to spec in my opinion. Nobody, myself included, likes that outcome, but the truth is Clinton didn't do the work needed to win the election. Now, she had a number of challenges, but she was also running to sell the world on the idea of her being the leader too. No excuses. I feel strongly about that. The primary reason I feel that way is she flat out could have won. A shift in campaign strategy, something her own staff urged her to do many times as they saw the numbers, would have sealed the deal. Visit Wisconsin, do some real work in the Rust Belt, and talk about jobs, not just education, or other similar things that put the fault on those who are expected to vote, and she would have won easily. What actually happened was a run on popular vote totals. I'm told that was to increase the legitimacy of her win, and lay the foundation for a mandate type win. Ok, that's all fair, valid, reasonable, but for the fact that the basic work all that is predicated on simply was not done. The EC more or less forces that work to get done too. I'm fine with the EC as it exists today. An awful lot of the EC discussion is driven by a bad outcome, and I am just not sure that makes sense, or at least it does not make sense without a super honest, raw analysis of what actually did happen.
  - cybersnowflake 7y ago

egdod 7y ago

Faithless electors are hardly a new phenomenon. https://en.wikipedia.org/wiki/Faithless_elector https://en.wikipedia.org/wiki/Faithless_elector

em3rgent0rdr 7y ago
Exactly. This is how it has basically been for the past 230 years. The ruling in no way "kicks at the foundation of how America chooses presidents". A few states recently enacted an unconstitutional law to attempt to void the faithless electors vote, and all this ruling does is clarify that those state laws were indeed unconstitutional.
- AnimalMuppet 7y ago
  Almost. If this were a Supreme Court decision, I would agree with you. But it's "only" the 10th Circuit. It doesn't apply to most of the country unless the Supreme Court agrees or unless and until the other districts adopt the same reasoning when such a case comes before them.
- Pinckney 7y ago
  I agree that the 12th amendment doesn't allow states to void the faithless elector's vote, but it would be constitutionally permissible for them to criminalize faithless voting, would it not?
  - dctoedt 7y ago
    > it would be constitutionally permissible for them to criminalize faithless voting, would it not? No, according to the court's opinion ("slip opinion"), starting at p.73 of the PDF [0]. I've posted excerpts in a top-level comment. [0] https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf

forgingahead 7y ago

I really find it amusing that it was Democrats accusing Trump of not accepting the outcome of an election....

duxup 7y ago
Is that what you think this story is about?
Fjolsvith 7y ago
I still don't understand why they call Trump a populist president when [HRC] had the bigger populist vote count.
- krustyburger 7y ago
  I think you may be confusing the words populist and popular.
- cybersnowflake 7y ago
  If Libs are SO concerned that the Will of the People must always be heard can we count on their support to bring back popular initiatives like CA Prop 187 that Judges struck down,have the census count citizens so that Blue States can't improperly gain Legislative seats, crack down on ballot harvesting (when it benefits them) and generally reverse all the things Libs have done that wouldn't have won in a straight majority vote of the population? No?
  - AngryData 7y ago
    Why would the census count citizens? We already know how many citizens we got, every US citizen has documentation on their existence. If you don't exist on paper already, you aren't a citizen as far as the US government is concerned. The census is for one thing, counting the number of people actually living in each area and the very basics of what conditions they live in. Being a citizen doesn't change whether you exist or not.
    - 7y ago

AnimalMuppet 7y ago

It's the 10th Circuit Court of Appeals, so it's not binding on the rest of the country. It would be good if this went to the Supreme Court and was ruled on while it's just one elector, and isn't going to actually change an election. (Lawrence Lessig is on the side that won this ruling. He's trying for a Supreme Court decision, one way or the other. But the only way to get that is if the other side appeals this ruling, and the Supreme Court agrees to hear the case.)

cybersnowflake 7y ago

Whats the point of having actual human electors if they can't be faithless? Couldn't the Founding Fathers just say tally up the electoral votes if a mechanical transition from popular to electoral votes was desired?

ColanR 7y ago
That was the precise idea - and in an age when riding from the states to DC could take a month or more, the mechanism for that tally was electors who physically travelled to DC, and were sworn to vote as they were directed by the populace.
- microcolonel 7y ago
  > ...sworn to vote as they were directed by the populace. And probably would've been beaten to death or hanged in public for the wrong form of dereliction of that duty. ;- )
  - imustbeevil 7y ago
    Which could also be said for electors voting against their local interests in favor of their state's interests. Who's the derelict if everyone who lives within a 50 mile radius votes one way but the state goes another? That's the point of electors; states getting all of them for free should be the outlier.
    - microcolonel 7y ago
      Hence the careful wording “the wrong form”. Just like other middleman, the elector is in a tough spot.
- cybersnowflake 7y ago
  Thats pretty odd to specify Electors who would vote then. Could have just said tally up the votes into EC votes and then the same man in a funny wig would still be dispatched to report in. Seems a pretty stupid convoluted way to go about it if what you're saying is correct

dctoedt 7y ago

It's worth noting that the decision — by a three-judge panel of the appellate court — is only an interim decision. In essence, the trial court took a shortcut — in software terms, an early return or -exit: The trial judge concluded that, when Colorado's secretary of state removed a member of the Colorado delegation to the Electoral College (for having voted for Kasich instead of Clinton), the removed "elector" had no legal right to sue for nominal damages because the Colorado secretary of state had the legal authority to remove the elector. The trial judge therefore summarily tossed out the removed elector's lawsuit. The appellate court panel concluded that the trial judge got the law wrong, and therefore the removed elector did have the right to sue for nominal damages. The panel sent the case back to the trial court so that the lawsuit could (in theory) proceed normally. The state has the right to appeal further, to the entire appellate court sitting "en banc" and/or to the Supreme Court. Here are some excerpts from the three-judge appellate panel's opinion (which I find compelling, incidentally): "[T]he Supremacy Clause is broader than preemption; it immunizes all federal functions from limitations or control by the states." Slip op. at 75 (citation omitted). "Unlike the President appointing subordinates in the executive department, states appointing presidential electors are not selecting inferior state officials to assist in carrying out a function for which the state is ultimately responsible. Presidential electors exercise a federal function—not a state function—when casting their ballots. Burroughs, 290 U.S. at 545. When undertaking that federal function, presidential electors are not executing their appointing power's function but their own." Id. at 82-83. "As the text and structure show, the Twelfth Amendment allows no room for the states to interfere with the electors’ exercise of their federal functions." Id. at 86. "Dictionaries from the relevant period support Mr. Baca’s contention that the drafters of the Twelfth Amendment intended electors to exercise discretion in casting their votes for President and Vice President." Id. at 88. "As these sources reflect, the definitions of elector, vote, and ballot have a common theme: they 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." Id. at 90 (footnote omitted). "In summary, the text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice." Id. at 93. "Although we concur with [Colorado's] review of historical practice [of elector pledges], we cannot agree that these practices dictate the result the Department seeks. First, and most importantly, the practices employed—even over a long period—cannot overcome the allocation of power in the Constitution. McPherson, 146 U.S. at 35–36. Second, there is an opposing historical practice at play: a history of anomalous votes, all of which have been counted by Congress." Id. at 99. "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." Id. at 101. [0] https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf

jdlyga 7y ago

The problem with the system is that it's not one person one vote. If you're in New York, your vote is basically worthless. And it shows. You barely ever see presidential election ads on TV, or get any robocalls. Meanwhile, people in swing states are inundated.

cmurf 7y ago

The party system has completely perverted the intent of the Electoral College, most centrally by populating it with party loyalists, the worst possible people on earth for this task. Federalist 68 says Electors were to be deliberative people, people chosen for this task, and not to any preestablished body. Electors chosen from the general mass by their fellow citizens will best be able to carry out "complicated investigations". There is no complication or investigation in the current process! It's 180 degrees from Federalist 68. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. The present system lends itself directly to blackmail because those with all the money both choose Electors, and are Electors. They are not chosen from the general mass, they are not chosen by the people. And further: They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; What persons could possibly be more of a prostitute than party loyalists? We would be better off if the Electors were randomly selected from the general population, minus the expressly listed people in Federalist 68: politicians or other person holding a place of trust or profit. https://avalon.law.yale.edu/18th_century/fed68.asp https://avalon.law.yale.edu/18th_century/fed68.asp

jfengel 7y ago
Party loyalists are the opposite of prostitutes. Prostitutes can be bought. Party loyalists are True Believers. They don't make a lot of money, and they spend years refining their messages with each other. They have a sincere belief in what they're doing, and believe it to be the best way to run a country. They may well be wrong, stupid, or even malignant. They certainly have some strange bedfellows: winning elections or votes means crossing that 50% level, which requires making friends with people whose interests are only partially aligned with yours (as opposed to the people whose interests are diametrically opposed to yours). Their loyalty is at least partly sunk-cost fallacy: it takes a long time to be a party insider and they can't just hop over to any other party without losing those years of trust built up. But what they aren't, is prostitutes. For better or worse, they believe.