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Our Omniscient Framers

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The Electoral College is of course a travesty. It was also a kludge agreed to without a lot of deliberation that is not used by any other liberal democracy. But it’s a kludge that for most of American history produced acceptably legitimate results. But, like BlackBoard after the college lets most of the tech staff walk because the Associate Vice Provost For Assessment Busywork needs a third secretary and an increased limousine and entertainment budget, the kludge is collapsing. And the crazy thing is that as constitutional hardball escalates the system could be much worse than it even is now:

Colorado’s presidential electors do not have to vote for the candidate who wins the state’s popular vote, the powerful 10th U.S. Circuit Court of Appeals in Denver ruled Tuesday evening, a decision that could have major ramifications for future elections.

A three-judge panel on the federal appellate court ruled 2-1 against the Colorado Secretary of State’s Office in a case dating back to the 2016 presidential election, when three of the state’s nine presidential electors — the state’s Electoral College voice — tried to vote for candidates other than Democrat Hillary Clinton, who won handily in the state. 

Then-Secretary of State Wayne Williams ordered them to cast their votes for Clinton or be replaced. One of the electors, Micheal Baca, refused and tried to back Ohio’s then-Gov. John Kasich, a Republican, as part of a national attempt by electors to block Donald Trump’s presidency. 


Baca, termed a “faithless elector,” was removed and replaced with another elector who voted for Clinton. The two other electors who also wanted to vote for Kasich — Polly Baca (unrelated to Micheal) and Robert Nemanich — opted to vote for Clinton instead of being replaced.
But the 10th U.S. Circuit Court of Appeals ruled that Williams actions trying to enforce Colorado’s law binding presidential electors to vote for the candidate who won the popular vote violated the Constitution.

Great — the likelihood that the next presidential election could be decided by a handful of cranks making their own judgment just increased. I didn’t like this movie the first time!

Oh, and guess who brought the lawsuit to defend the faithless electors?

“This is an incredibly thoughtful decision that could advance substantially our campaign to reform the Electoral College,” Lawrence Lessig, the Harvard University law professor who leads the group Equal Citizens and argued the case on behalf of the three electors, said in a written statement. “We know Electoral College contests are going to be closer in the future than they have been in the past; and as they get closer and closer, even a small number of electors could change the results of an election. Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election.”

I see that the brick the Court shot in Rucho has not dissuaded Lessig from pursuing his plan to make the Electoral College even worse than it currently is. It’s time to shut down Harvard until we can figure out what the hell is going on.

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