On Tuesday, the Denver-based U.S. Court of Appeals for the 10th Circuit ruled that the Colorado secretary of state violated the Constitution when he removed an Electoral College delegate who had chosen to vote for John Kasich instead of Hillary Clinton. The secretary of state nullified the vote of the delegate and installed a new delegate who voted in accordance with the popular vote of the state of Colorado.
Michael Baca, a loyal Democratic voter, was elected as a delegate to the Electoral College in November 2016. By voting for Kasich instead of Hillary, Baca was attempting to be a part of a movement by Electoral College delegates across the country to pull away votes from both Trump and Hillary so as to send the election to the U.S. House of Representatives. The Constitution provides that if no candidate receives 50% plus one vote (270 Electoral College votes), then the top three candidates in the Electoral College are to be presented to the House of Representatives and the House is to select the next president.
Baca’s plan was dependent upon other Republican Electoral College delegates also voting for Kasich. Trump received 304 Electoral College votes and, for the plan to succeed, 35 Republican delegates would have also had to cast their votes for Kasich. While Kasich would not have received any votes in the general election, his third-place finish in the Electoral College would have made him eligible for the Republican-controlled House to elect him as president of the United States.
Needless to say, this was just the first attempt by Democrats to try to remove Trump from the White House. And this week, the 10th Circuit dealt a serious blow to the Democrats’ latest scheme to try to circumvent the Electoral College. In another diagnosed case of “Trump Derangement Syndrome,” many Democratic leaders have encouraged state legislatures to enter into an agreement wherein the states in the compact award all their Electoral College votes to the presidential candidate who wins the national popular vote. This agreement is to take effect as soon as enough states have joined so that there are at least 270 Electoral College votes guaranteed by the compact.
Many Democrats hate the Electoral College because they feel it deprived them of the White House in 2000 and in 2016. Democrats hate the fact that they can’t win the race for the White House according to the Constitution, and they have thus decided that it is in their political self-interest to change the rules so that they can try to win the presidency more often.
At this time, there are 15 states plus the District of Columbia that have entered into the agreement. To date, the compact has 196 out of the 270 Electoral College votes it needs before going into effect.
The problem with this harebrained scheme being promoted by the Democrats is that it attempts to circumvent the U.S. Constitution and the process to properly amend the Constitution. In order to amend the Constitution, three-quarters of the states must ratify a proposed constitutional amendment that has already passed by either a two-thirds vote by Congress or via a constitutional convention called for by the states.
Democrats know that they cannot get three-quarters of the states to ratify a constitutional amendment to abolish the Electoral College. As such, rather than give up on their desire to abolish the Electoral College, they instead have decided to change the rules on how the Constitution can be amended.
The good news is that the 10th Circuit, with its ruling on Tuesday, has telegraphed the beginning of the end of the Democrats’ latest scheme to end the Electoral College. If a state cannot require that its delegates vote in accordance with its own state’s popular vote, it will therefore also never be able to require that its delegates vote in accordance with the nation’s popular vote.
While the 10th Circuit decision does not directly deal with the National Popular Vote Interstate Compact, the reasoning of this decision will be used when lawyers argue the eventual unconstitutionality of the compact. Tuesday’s court ruling is a brick in the wall that will hinder the Democrats’ unconstitutional attempts to amend the Constitution to abolish the Electoral College.
Mark Meuser is an election law attorney with the Dhillon Law Group based in California. You can follow Mark Meuser on Twitter @markmeuser.