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- Protesters hoped the Electoral College would opt against Trump in 2016.
Americans have never chosen their president; that’s done by a system of electors in each state, called the Electoral College. The vast majority of the time, the College aligns with the nation’s people, but not always.
Donald Trump lost the popular vote, as did George W. Bush in his first election. Most scholars agree that three other presidents throughout history also came up short. But as Americans continue to concentrate in a minority of states, the Electoral College, which gives more weight to sparsely populated states, is more likely to award the presidency to a vote-loser. And that change has led to a push for reform.
The College has a total of 538 electors, including nine in Colorado. The number of a state’s electors is equal to its senators (two) plus the number of representatives, which is based on population. A presidential candidate needs no more than 270 electoral votes to win.
States are given broad leeway in how they allot their electoral votes. Most states are winner-take-all, but Maine and Nebraska divvy them up proportionally.
Individual electors are chosen by political parties. So if the Democratic candidate wins in Colorado, as Hillary Clinton did in 2016, Democratic party electors are the ones to cast Colorado’s votes. If Donald Trump had won, Colorado’s Republican electors would have cast the ballots.
Some states, including Colorado, “bind” electors — requiring them to vote for whomever wins the state’s popular vote. Others don’t, though it’s very rare for an elector to vote for someone other than their party’s candidate.
Now, the Electoral College in general, and Colorado’s electoral system in particular, are facing significant challenges that could fundamentally change how we elect presidents.
Let’s start at the beginning and work our way down.
• In 2016, three Colorado electors were among those across the nation who considered using their power to deny Donald Trump the presidency.
Though a majority of Colorado voters had picked Clinton for president, and though Colorado binds its electors, elector Micheal Baca tried to back Ohio’s then-Gov. John Kasich, a Republican, instead. Then-Secretary of State Wayne Williams promptly removed him and replaced him as an elector, and two other electors who were considering a defection — Polly Baca (no relation to Micheal) and Robert Nemanich — promptly fell into line.
The three electors then sued the Colorado Department of State, claiming they should have been allowed to vote their conscience.
• In March 2019, Gov. Jared Polis signed a bill into law that made Colorado the 11th state to join the National Popular Vote compact. The premise of the national movement is pretty simple: Get states that collectively control 270 or more electoral votes to pass laws committing to the agreement, at which point those states will be obligated to give their electoral votes to the winner of the national popular vote.
While not enough states have signed on to the compact to put it into effect, the law is essentially a work-around to avoid having to amend the Constitution in order to get rid of the Electoral College. It leaves the College in place, but reduces it to a formality and allows the American people to choose their president democratically: one person, one vote.
• On Aug. 20, the U.S. Court of Appeals for the 10th Circuit in Denver ruled that Colorado’s electors don’t have to vote for the winner of the state’s popular vote — a decision that was in conflict with a Washington Supreme Court ruling, meaning the ultimate say could fall to the U.S. Supreme Court.
The 10th Circuit, in a 2-1 ruling, found that Williams acted “unconstitutionally” when he removed Micheal Baca.
• On Aug. 29, a group called Colorado Votes successfully petitioned an initiative onto the 2020 Colorado ballot asking voters to repeal the NPV. Their key argument: NPV reduces the influence of less populous states by making every vote equal.
And that’s true. Recall that because every state, regardless of population, gets two senators, and because more than 50 percent of the county’s population lives in just 10 states, smaller states have more power in the Electoral College. A citizen of Wyoming has three times the voting power in the presidential race as a citizen of California.
However, it’s worth noting that the outsize influence of small states only benefits the residents of those states who are members of the majority party. Under a winner-take-all model, a minority-party vote doesn’t get tabulated toward a total that ultimately decides the presidential race; it essentially disappears.
“The focus of people opposed to a national vote is the state ... [but] the voice of Colorado is 1.3 million Democrats and 1.2 million Republicans,” NPV Chair Dr. John Koza tells the Independent. “It’s not 100 percent Democrats.”
Should voters decide to repeal NPV in 2020, it could still come into play if enough other states approve it. Meanwhile, the decision in the Baca case could mean that electors can’t be bound to vote for a statewide winner — which would suggest that they also can’t be bound to a nationwide winner.
But wait, isn’t that what the NPV is?
Asked about that, Deputy Secretary of State Jenny Flanagan told the Indy via email, “The decision undermines the will of Colorado voters and sets a dangerous precedent.
“It is yet to be seen how the 10th Circuit’s decision will affect the national popular vote compact. Secretary [of State Jena] Griswold is focused on taking every step to vigorously protect Colorado voters.”
Attorney General Phil Weiser’s office likewise said it was unsure how the compact might be impacted.
However, Koza says there is no impact. Twenty-four states, he explained, don’t bind their electors anyway, and NPV doesn’t change that. It simply selects the electors — so if the Democratic candidate wins, the Democratic electors cast their ballots. Defectors, “faithless electors,” as they’re known, are incredibly rare, Koza explains, despite the fact that binding electors is a relatively modern idea.
“The system’s worked for 200 years,” he says, “without obligating the electors.”