A frustrated voter sits at a voting booth in Alexandria, Va., on Election Day, November 8, 2016. Then-Republican candidate Donald Trump was elected president despite Democrat Hillary Clinton's winning the national popular vote by more than 3 million ballots. File Photo by Molly Riley/UPI | License Photo
Sept. 6 (UPI) -- With the 2020 U.S. presidential election 14 months away, a recent ruling by a federal appeals court is now the cause of some concern after it provided new legal ground for certified state electors to disregard the will of voters.
In a decision last month, the Tenth Circuit Court of Appeals ruled that members of the Electoral College -- the ones who actually cast the votes that elect U.S. presidents -- do not have to cast their binding ballot for the candidate who wins their state's popular vote.
Each state has its own law governing the way electors vote, and nearly half of all states require they vote in accordance with the will of the voters. If they don't, "faithless electors" are generally removed and replaced with one who will. The federal ruling was a response to a lawsuit involving Colorado elector Michael Baca, who submitted his official Electoral College ballot in 2016 for Ohio Republican John Kasich -- even though Democrat Hillary Clinton carried the state popular vote.
In all, there were 10 faithless electors who voted in 2016 against their state's pledged candidate. Three were invalidated and replaced with an elector who complied, and the other seven were officially recorded. As a result, Clinton lost five electoral votes (three to former GOP Secretary of State Colin Powell, one to Democratic candidate Bernie Sanders and one to Democratic South Dakotan activist Faith Spotted Eagle) and Trump lost two (one to Kasich and one to former Texas Rep. Ron Paul).
Four of the faithless electors belonged to Washington state, two to Texas and one to Hawaii. The invalidated votes belonged to electors in Maine (for Sanders), Minnesota (for Sanders), and Baca in Colorado. Adding concern for the ruling is the fact there were more faithless electors in 2016 than there have been in any other modern U.S. election. Only one single elector disregarded their state vote in each of the 2004, 2000, 1988, 1976, 1972, 1968, 1960, 1956 and 1948 elections.
The appellate decision has generated concern among state officials and advocates, who fear it gives individual electors all the power -- and voters none.
Colorado Secretary of State Jena Griswold slammed the ruling, saying it effectively strips citizens of voting power in a constitutional democracy.
"Our nation stands on the principle of one person, one vote. We are reviewing this decision with our attorneys and will vigorously protect Colorado voters," Griswold said.
Griswold's office did not immediately respond to UPI's request for details of how she plans to fight the ruling, but some believe it's almost certainly headed for the U.S. Supreme Court -- particularly because it conflicts with a Washington high court decision in May that said the state had legal ground to fine three faithless electors in 2016 who didn't vote for Clinton, even though she carried the state with 54 percent.
Jason Harrow, executive director and chief counsel of Equal Citizens, a non-profit legal group that represented the electors in both cases, said the Colorado ruling provided necessary clarity with regard to electors' rights under the current Electoral College system.
"There's been this lingering uncertainty about who electors are, what they can do, what their powers are and what states can do," he said. "This Colorado decision is very clear, it provides no uncertainty and it will most likely let us go to the Supreme Court, which most likely resolve the issue."
Harrow said Equal Citizens' chief goal is to underscore problems with the Electoral College, which he says needs "serious reform" because it doesn't reflect the intentions of the framers of the U.S. Constitution.
Whatever outcome a potential Supreme Court case may bring, Harrow said it's vital to settle the issue before the 2020 vote, when faithless electors may again strike out on their own.
"We don't want to get into a scenario where we are in the middle of an election -- where we don't know the rules of the road," he said. "The 2016 election exposed something where there were deep controversies over some electoral votes and luckily it wasn't enough to swing an election, but it could be."
The Electoral College system has been a target of numerous activists over the years. Presently, many states have changed or are considering changing how their electoral votes are awarded. A national movement, the National Popular Vote Interstate Compact, promotes a coalition of states that have already enacted laws to award their electoral votes to whichever candidate wins the national popular vote -- an effort aimed at democratizing the entire process. The compact, however, won't enter legal force until states representing at least 270 electoral votes -- the number needed for a candidate to win -- join the coalition. Presently, the compact has states with 196 electoral votes, and needs just 74 more.
National Popular Vote Director John Koza responded to the ruling by arguing the issue would go away entirely if all nominees were fully suited to be president of the United States.
"If the political parties do their job of vetting their nominees for the position of presidential electors, faithless electors cannot have any effect on the outcome -- under either the current system or the National Popular Vote Compact," he said in a statement to UPI.