A ruling by the 10th Circuit Court of Appeals says that those who are chosen to be electors — those who cast votes in the electoral college — do not have to follow the voters of that state and vote for whichever candidate won the popular vote in that state. They can decide to vote for someone entirely different and the state can do nothing to stop them.
The case is Baca v Colorado Secretary of State and it involves Michael Baca, one of the electors from that state, refusing to vote for Hillary Clinton in 2016 as he had pledged to do when he agreed to follow the state’s popular vote. The state government removed him as an elector for all future elections and he filed the suit arguing that the Constitution gives electors the right to vote for anyone they want regardless of the popular vote in their state. And he’s right that this is undoubtedly what the Founding Fathers intended and what the text says. David Post has a long essay at the Volokh Conspiracy explaining the history and text of the Constitution.
He also discusses the implications of the ruling and how, if electors decided in significant numbers to not follow the popular vote, it would have a profound effect on our elections and the nature of our democracy. Despite the text and history of the Constitution on this question, our long tradition has been that electors basically perform the ceremonial duty of just ratifying the state’s popular vote. This tradition is far more democratic than the goals of the founders, which was that the members of the electoral college would come from society’s elite and well educated and would exercise sober judgment that was better than the voters would so. It was an impediment to democracy, like the initial provision that said the Senate would be chosen by state legislatures rather than by popular vote, and it was absolutely intentional. It was also wrong.
But if we were to change that tradition and the electors felt free to vote for anyone they please, the implications would be enormous.
But let us imagine the unimaginable—a useful thought experiment, especially, I would think, for adherents to the “original meaning” of the Constitution. What if we actually ran our presidential elections as the Framers intended—i.e., what if we committed the decision of who would become our president to this group of 538 people, each of whom had been elected by voters in one of the States for the sole purpose of choosing, freely, the candidate they believed best suited to the office?…
One thing is pretty clear: that would be a very, very different presidential election process than the one we have had for the last 200 years. Which is not to say it wouldn’t be an improvement over our current practice, which has delivered unto us an individual manifestly unfit to occupy the office. Perhaps the choice of president, as Justice Harlan put it, really does “preclude an informed choice by the citizenry at large,” and that a small group exercising the power by proxy would produce better results. There is something intriguing about the notion of you and I voting not for president, but for people to whom we delegate that choice, people we trust to exercise their discretion and their judgment wisely, and there would, presumably, be campaigns mounted not by presidential candidates, but by electors: “Trust me to choose your president.” The problem of elector corruption, on the other hand, could prove insurmountable; with a group that small, the price of buying the presidency would be relatively manageable and possibly uncontrollable. It would be a strange world indeed.
All but two states have a “winner take all” rule where the winner of the popular vote gets all of that state’s electoral votes. Nebraska and Maine are the exceptions. That means that it would take a whole lot of electors deciding to vote for someone other than the winner of the popular to affect the outcome of a presidential election. But the breakdown of the traditional rule could eventually lead to that happening, if enough electors decide to not follow the popular vote. Some states only have three or four electors, so it wouldn’t take that many to change the results. And it would certainly be viewed with anger by voters, as it should be. Hopefully that is enough to prevent this from happening in significant numbers.