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Protestors demonstrate against President-elect Donald Trump outside Independence Hall November 13, 2016 in Philadelphia, Pennsylvania. The Republican candidate lost the popular vote but won the electoral college. (Photo: Mark Makela/Getty Images)

Electoral College Abolitionists Say Court Ruling Shows Why Current System 'Terrible Way of Picking the President'

Case "could spur additional change and additional movement that would in some ways make a solution like the National Popular Vote stronger," one advocate said

Julia Conley

In hopes of reforming the Electoral College to bring the U.S. closer to a "one person, one vote" system, a pro-democracy group celebrated a federal court decision on Thursday, as outside critics of the current voting process said the case reveals why the antiquated system should be abolished once and for all.

The decision could eventually bolster the case for the National Popular Vote Interstate Compact, in which states' electoral votes would go to the winner of the nationwide popular vote, instead of the winner of each states' popular vote in what Electoral College opponents call an unconstitutional system.

As the non-profit National Popular Vote Inc. says, "Existing winner-take-all laws are state laws—they are not part of the U.S. Constitution."

The judges handed down the decision in the case of Baca vs. Hickenlooper, brought by Micheal Baca, an elector in Colorado who in 2016 refused to cast his ballot for Hillary Clinton, the winner of the state's popular vote—acting as a so-called "faithless elector." The court ruled that the nation's 538 electors can vote for whomever they choose, rather than automatically giving their votes to the winner of their state's popular vote.

Equal Citizens, the group founded by Harvard law professor Lawrence Lessig, is working with Denver-based attorney Jason Wesoky to represent Baca.

"This is an incredibly thoughtful decision that could advance substantially our campaign to reform the Electoral College," Lessig told Fox 31, an affiliate station in Denver.

In 2016, Baca crossed out Clinton's name and wrote in Republican Gov. John Kasich of Ohio, after coordinating with a number of other electors in Colorado. If enough electors cast ballots for Republicans besides Trump, Baca reasoned, Trump would lose the electoral vote.

But the state invalidated his ballot and gave his vote to a different elector who agreed to vote for Clinton. In doing so, the appeals court ruled, the state violated the U.S. Constitution.

The court's decision contrasted with another ruling by Washington state's Supreme Court in another case brought by Equal Citizens. The court said in May that electors can be fined for failing to vote for the candidate chosen by the majority of voters in their state.

In other words, the whole legal battle over the Electoral College is complicated. And that's largely the point.

Critics of the Electoral College said both decisions only bolster the argument that the system must be replaced with one in which every voter's vote counts as a single vote, and candidates must win the approval of the majority of voters in order to become president.

While some saw the decision as one that could make way for electors to go against the majority of voters in their state, Equal Citizens Chief Counsel Jason Harrow viewed the ruling as a victory.

Harrow told Common Dreams that progressives' wariness over the 10th Circuit ruling is understandable, but that his organization is looking ahead to hopefully resolving how the Electoral College should operate—if at all—before the 2020 election.

"Win or lose, our clients wanted to highlight what the system really is," Harrow told Common Dreams. "If the system really says that they have the discretion as, the court said, the Constitution pretty much requires, that really could spur additional change and additional movement that would in some ways make a solution like the National Popular Vote stronger."

"In our view," he added, "the worst case scenario is status quo...Status quo means we don't know what role these electors play and it means we continue to be at risk of this crazy state of affairs where candidates campaign in all kinds of ways that are unfair."


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