By The Herald Editorial Board
If the issue over so-called “faithless electors” — an Everett man prefers “Hamilton electors,” because, well, Alexander Hamilton — is going to be resolved before the next presidential election, the U.S. Supreme Court better get on it; we’ve got just 438 days until Nov. 3, 2020.
A federal appeals court panel ruled Tuesday, 2-1, in favor of three members of Colorado’s representatives to the Electoral College in the 2016 presidential election, determining that electors have discretion in whom they cast ballots for president and vice president and don’t have to follow the results of the popular vote in their state.
The appellate court ruling diverged from the decision by Washington state’s Supreme Court in May regarding a similar case, that instead found that this state’s Electoral College members were bound by their pledge to vote according to the state’s popular vote.
A quick refresher: The 2016 presidential election — for the fourth time in the nation’s history and the second time in 16 years — was won not by the candidate receiving the most votes but by the candidate garnering at least 270 votes in the Electoral College. Although Democrat Hillary Clinton won the popular vote by more than 2.86 million ballots, Donald Trump won the election with 304 Electoral College votes, following a tally of the popular vote in each state.
Three Washington state electors, including Bret Chiafalo of Everett, attempted to throw the final decision to the U.S. House of Representatives by denying Trump the 270-vote threshold, as The Herald’s Jerry Cornfield reported Wednesday. The pact they and other electors attempted to organize was that electors in blue states would pull their support for Clinton, if electors in red states agreed to vote for a Republican other than Trump.
Without enough support elsewhere in the Electoral College, however, the pact failed. Washington’s three Hamilton electors were fined for refusing to vote for the state’s winner as they had pledged, a decision that the state’s high court upheld.
But the decision regarding the Colorado electors now invites the U.S. Supreme Court to take up one or both cases and settle the matter for good. How the court rules will weigh not only on the future of the Electoral College but also in an effort to sidestep it and determine the presidency by popular vote. And it’s a campaign that has drawn growing support this year.
The National Popular Vote, a campaign that seeks to give sole consideration to the popular vote, is asking state legislatures to pass a law that would award all their electors not to the winner of that state but to the candidate who wins the most popular votes in all 50 states and the District of Columbia. To enact the change, states representing 270 electoral votes — the same threshold that determines the presidency — would have to the adopt the popular vote bill.
With passage of legislation this year, Oregon, New Mexico, Delaware and Colorado — totaling 24 electoral votes — joined 12 other states that had earlier joined the pact for a total of 196 electoral votes. Washington state adopted the legislation in 2009. Nevada’s legislature would have added six votes to the tally, but its bill was vetoed in May by Democratic Gov. Steve Sisolak.
Currently short by 74 electors, the effort needs several other states to adopt the legislation. The pact has passed in one legislative chamber in seven states with a total of 69 electoral votes. And it has had a hearing in 17 other states that total 139 electoral votes.
But, as FiveThirtyEight noted, the effort has burned through most of the blue states where the pact had the most support. Colorado, in fact, represented the first “purple” state to adopt the pact, but that decision now faces a possible popular referendum that could set up a repeal of the legislation following the 2020 election.
It would take the return of Alexander Hamilton himself to get enough of the remaining states to adopt the National Popular vote before the 2020 election.
There are other caveats: Following the election, the 2020 census is likely to have changed the electoral math as the number of each state’s U.S. House members are reapportioned, possibly to its benefit. But even if it reaches the 270-vote threshold, a court challenge on constitutional grounds is nearly certain. And legislatures can always repeal their earlier participation in the pact, depending on a shift of political winds.
How the U.S. Supreme Court rules on faithless electors, then, could factor into future presidential elections with or without the pact in effect. If allowed discretion in casting their votes, members of the Electoral College could upset either the traditional role of electors or the National Popular Vote’s work-around.
The Electoral College is antiquated and undemocratic, in that it gives greater weight to states of smaller population and defies the ideal of one person, one vote, thus contradicting the will of voters. It would also require an amendment to the Constitution to repeal it.
As difficult as repealing the Electoral College would be, it might be a better option than the turmoil that could lie ahead.
Correction: The National Popular Vote campaign is currently short 74 electors of the 270 needed to take effect. An earlier version of this editorial gave an incorrect tally.
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