Keep The Federal Courts Out Of The Electoral College
By Tyler Durden
Submitted by Ryan McMaken via The Mises Institute,
The United States was originally constructed in such a way that the states themselves would dominate the electoral process. Historically, states have determined who can vote, when they vote, and how they vote. Through this power states have also been given limited de facto power of determining citizenship.
Over time, the federal courts have increasingly seized local prerogatives in this matter, but even today, states and counties are the primary government organizations that conduct elections, collect the votes, print the ballots, and determine the winners.
This is appropriate, of course, since the United States was intended to function on a confederation model in which it would be up to the states to decide for themselves how they would send representatives to Congress. There is no such thing as a “national election” in the United States because there wasn't supposed to be a single nation.
Unfortunately, in the wake of the 2016 election, opponents of the election's outcome have been petitioning the Supreme Court to step in and take even more power away from the states in deciding how presidents are selected through the Electoral College. Specifically, two electors in Colorado are suing in federal court to overturn a state law that requires members of the electoral college to support the winner of the statewide vote:
The two electors, Polly Baca and Robert Nemanich, are suing to overturn a Colorado law that requires them to support the winner of their statewide popular vote — Hillary Clinton — during the general election last month.
In this case, the two electors who are suing are pro-Clinton, and Clinton won the statewide vote in Colorado. So, as electors, they'll be voting for the candidate they supported in the general election anyway. But, they're hoping their lawsuit will lead to the nullification of state laws over the electoral college, which could free up electors in other states. Currently, in addition to Colorado, 28 states and the District of Columbia have adopted laws mandating the electors vote for the winner of the statewide vote. Failure to comply with these mandates, however, generally bring only a fine.
This follows a mandate from the current US Constitution which states in Article II, Section 1 that: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
In other words, the text is explicit that the state legislature has nearly untrammeled control over how electors are appointed.
Thus, by extension, the state legislature could also be entitled to force electors to legally pledge to support the winner of the statewide vote.
This method would also be reminiscent of methods used prior to the 17th Amendment when members of the legislature were pledged to appoint to the US Senate the winners of statewide votes.
Of course, the method that states use to appoint or bind electors …read more
Source: Keep The Federal Courts Out Of The Electoral College
