On Monday, U.S. District Judge Wiley Daniel denied an injunction filed by two Electoral College Electors to suspend a Colorado law that binds the nine Electors in Colorado to vote for Hillary Clinton. The Electors argued that the law obligating them to vote for the candidate whom the majority of the voters in Colorado voted for, denied their right to free speech and is unconstitutional because it is against the intent of the framers of the Constitution.
The Electors who brought the suit are the founders of a group of Electors calling themselves Hamilton Electors who seek to deny Trump the necessary majority in the Electoral College by using their votes to vote for a more moderate Republican candidate in the hopes of encouraging their Republican counterparts to do the same. These Electors argue that they have the right to vote for whoever they want to in the interest of the American people.
Unfortunately, their lawsuit was ill-conceived and sets a very bad precedent for the efficacy and usefulness of the Electoral College. If the Electors had prevailed, then similar laws in twenty-eight other states could also be overturned, allowing other like-minded Electors not to vote for Trump. This would have meant that 270 of 538 Electors could have cast their votes for whomever they thought should be President. This would have been a death knell for true democracy as it pertains to the election of the President.
In theory, if the lawsuit had been brought by similarly situated Republicans in a state where Electors are bound by law to cast their Electoral College votes for Trump because Trump won the majority of votes of their electorate in their state, the result might have been different. They might have prevailed on the combined arguments that the Constitution only gives states the right to determine how Electors shall be appointed but that the states have over-reached by curtailing the manner in which the Electors shall vote and that such law is unconstitutional because it is against the intent of the framers of the Constitution. Theoretical Republican plaintiffs could make the argument that it is their constitutional duty to deny the presidency to someone who is unduly influenced by foreign powers. Although establishment Republicans were emboldened in the primaries and even during the general election to denounce Trump for the imminent danger that his administration poses, it seems that they are resigned now to their fate as Trump’s supplicants.
The reality is that most Electors lack the ability to vote against their party’s candidate, no matter how unqualified or dangerous or influenced by foreign powers that candidate might be. So why do we have an Electoral College? What makes these people more qualified than the 300 million other citizens of this country to cast deciding votes? Their only claim to legitimacy is that the institution of the Electoral College is constitutionally sanctified. Other institutions that our constitutional framers thought were a good idea have been abolished such as slavery. Other ideas that our constitutional framers thought were a good idea have been determined by the advance of history to be bad ideas like denying women the right to vote and requiring a poll tax for people to vote.
It is time to sound the death knell for the Electoral College since it is a useless institution which disenfranchises voters and no longer functions as the framers intended.