There’s a Major Electoral Crisis Brewing for 2020

FILE – This Jan. 25, 2012, file photo, shows the U.S. Supreme Court Building in Washington. The Supreme Court enters its final week of work before a long summer hiatus with action expected on the Trump administration’s travel ban and a decision due in a separation of church and state case that arises from a Missouri church playground. (AP Photo/J. Scott Applewhite, File)

The 2020 election may be a distant thought for most Americans, but there’s a major electoral crisis brewing.

This involves a case that was just decided in the 10th Circuit Court of Appeals. It deals with a state elector from Colorado named Michael Baca. In 2016, he refused to cast his ballot for Hillary Clinton after she won the state, instead trying to give it to John Kasich as part of what was a fruitless national call to block Trump’s presidency.

My colleague streiff covered this ruling earlier from the angle of how this torpedos the “national popular vote movement,” in which some states have passed laws binding electors to whatever the national popular vote outcome is. There are more ramifications here though.

Here’s a brief recap of the details via the Colorado Sun.

Colorado’s presidential electors do not have to vote for the candidate who wins the state’s popular vote, the powerful 10th U.S. Circuit Court of Appeals in Denver ruled Tuesday evening, a decision that could have major ramifications for future elections.

A three-judge panel on the federal appellate court ruled 2-1 against the Colorado Secretary of State’s Office in a case dating back to the 2016 presidential election, when three of the state’s nine presidential electors — the state’s Electoral College voice — tried to vote for candidates other than Democrat Hillary Clinton, who won handily in the state.

Baca was eventually replaced with another elector who would cast their vote for Clinton. It was assumed to be within the authority of the Secretary of State to replace electors who refused to honor the outcome of the state vote in the presidential election.

Then the 10th Circuit ruled.

But the 10th U.S. Circuit Court of Appeals ruled that Williams actions trying to enforce Colorado’s law binding presidential electors to vote for the candidate who won the popular vote violated the Constitution.

“Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector,” the court said in a 125-page opinion written by U.S. Circuit Court Judge Carolyn Baldwin McHugh. “Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote-binding provision.”

In other words, according to the 10th Circuit, every elector in every single state has a constitutional right to cast their electoral vote as they see fit, regardless of how the state actually voted. To be clear, we’ve had faithless electors before. What this latest ruling does though is seemingly invalidate all state laws that seek to curtail the rights of electors to vote for whoever they want. Many states currently have statutes giving them the ability to replace or invalidate the votes of “rogue” electors.

So what’s this mean for 2020? It’s hard to imagine a scenario in 2020 where Trump wins and some significant number of electors don’t defect, especially given how tenuous his relationship is with most political establishments (and that’s who picks these electors in most states). Think of a situation where there’s only a small gap between the two candidates and 10-15 electors are able to flip the entire election.

Lest you think I’m arguing the 10th Circuit got this wrong, I actually don’t think so. I think they got this right. There is a very strong case that electors are given the constitutional discretion to vote as they please. In the dissent in this case, the only argument the one no vote could come up with is that the case had no standing because no damages could be awarded.

Regardless, even though I think this was the proper legal decision, this is still setting up to be a wild ride in 2020. We could be staring a real electoral crisis without an immediate remedy and it’s crazy to think of where that might lead us.

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