A federal court of appeals ruled this week that states cannot throw out electoral college votes from so-called “faithless electors.”
A faithless elector is a member of the electoral college, which meets in December after presidential elections to finalize the results, who votes for someone other than the candidate that won that state’s popular vote.
That’s exactly what happened after the 2016 election when one Colorado elector, pledged to vote for Hillary Clinton, instead voted for John Kasich.
Faithless electors are rare, but it does happen. Now, as a result of the court ruling, it might become a much more regular occurrence.
The ruling could have dramatic implications, especially if the vote is close.
From NBC News:
A federal appeals court ruled late Tuesday that presidential electors who cast the actual ballots for president and vice president are free to vote as they wish and cannot be required to follow the results of the popular vote in their states.
The decision could give a single elector the power to decide the outcome of a presidential election — if the popular vote results in an apparent Electoral College tie.
“This issue could be a ticking time bomb in our divided politics. It’s not hard to imagine how a single faithless elector, voting differently than his or her state did, could swing a close presidential election,” said Mark Murray, NBC News senior political editor.
It hasn’t been much of an issue in American political history because when an elector refuses to follow the results of a state’s popular vote, the state simply throws the ballot away. But Tuesday’s ruling says states cannot do that.
The decision, from a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, is a victory for Micheal Baca, a Colorado Democratic elector in 2016. Under state law, he was required 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 and then the governor of Ohio.
The secretary of state removed Baca as an elector, discarded his vote and brought in another elector who voted for Clinton. In a 2-1 decision, the appeals court said the nullification 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 choose their electors however they want, Tuesday’s ruling said, and can even require electors to pledge their loyalty to their political parties.
But once the electors are chosen and report in December to cast their votes as members of the Electoral College, they are fulfilling a federal function, and a state’s authority has ended. “The states’ power to appoint electors does not include the power to remove them or nullify their votes,” the court said. …
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