Federal Appeals Court Torpedoes the National Popular Vote Movement Thanks to a Hillary Clinton Elector

Quill ballpoint pens sit ready for Elector College electors, Monday, Dec. 19, 2016, in Olympia, Wash. Members of Washington state’s Electoral College met at noon Monday in the Capitol to complete the constitutional formality. (AP Photo/Elaine Thompson)


The genius of our Founding Fathers was in realizing that in order for a collection of sovereign states to agree to delegate some of the sovereignty to a federal government, even the smallest of states had to be guaranteed that their rights would not be trammeled and that the resulting nation would be a true republic and not merely perpetual rule by the largest states. The creation of a Senate elected by the state legislatures was one such check. The requirement of a super-majority of both Congress and of the States to amend the constitution was another. The masterpiece was the decision to have the president elected by an Electoral College ensuring that the president had widespread support throughout the country rather than being a regional candidate put in office by running up a large margin of victory in a small number of large states.

After George Bush defeated Al Gore while narrowly losing the popular vote, the progressive forces who would like nothing more than to destroy the republican character of the United States, came up with the idea of the National Popular Vote Interstate Compact (NPVIC). The idea being that if a large number of states made an agreement among themselves to cast their electoral votes for the candidate who won the popular vote, regardless of how many votes that candidate received in state elections, that the Electoral College could essentially be corrupted from its true purpose and made to serve the ends of a purely democratic election process, something, by the way, that the Founders abhorred.


Since its inception in 2007, 16 states controlling 196 electoral votes have signed on.

There are a lot of reasons to doubt that this is legal. The Constitution expressly forbids interstate compacts. Some law professors have argued that this is really THAT kind of compact but a TOTALLY DIFFERENT kind of compact which would pass constitutional muster. (If you can find an idea so bizarre that you can’t get an Ivy League law professor to argue in favor of it, please let me know. Its sort of like the old joke about why scientists have started using lawyers rather than rats in lab experiments.) And, of course, when you cast a vote for president you are actually casting a vote for an elector who is generally understood to be able to vote how they wish. Hence the hunt for “faithless electors” in 2000 and 2016, that is, electors who would vote for the Democrat rather than the person they were pledged to support.

What is so offensive about this is that it is a typically dishonest move by the left to find and end run around part of the Constitution they don’t like. There is a mechanism for getting rid of the Electoral College. It’s called a “constitutional amendment.” But to get there they would actually have to convince a large majority of Congress and of Americans that this makes sense when it really doesn’t. So they’ve come up with this cute little idea knowing that they only have to be clever enough to convince a handful of like-minded federal judges to go along with the lies and with the fiction and they have effectively changed the Constitution without anyone being able to object.


Regardless of the legality, the practicality suffered a significant blow yesterday when an appeals court ruled that an elector cannot be bound by a state to vote any particular way.

This is the set up.

The ballot was pre-filled with Hillary Clinton’s name, but Micheal Baca didn’t want to vote for Hillary Clinton.

The 24-year-old presidential elector in Colorado had a different plan. Weeks earlier, following Donald Trump’s victory in the general election, Baca and a fellow elector began a movement they called “Hamilton Electors,” a long-shot bid to stop Trump from winning the presidency. The idea was to convince enough members of the electoral college — the body of 538 members who vote for president — to instead cast ballots for Republicans such as former Ohio Gov. John Kasich, depriving Trump of just enough electoral votes required to become president.

Everyone told Baca it was a long shot — but he didn’t think so. All they needed was 37 out of 306 Republican electors to vote for a candidate other than Trump, and they also sought out Democrats to vote for moderate Republicans. Baca found two takers in Colorado: Polly Baca (no relation) and Robert Nemanich.

Just an observation. What did he hope to accomplish? The best he could do would be to have had the election thrown into the House of Representatives which had a Republican majority, but virtue signaling is nothing if not a spectator sport.


The Colorado Secretary of State wasn’t amused.

Then-Secretary of State Wayne Williams refused to count the vote and removed Baca as an elector. He replaced him with another elector who voted for Clinton.

Just think about how little an actual election made if the Secretary of State can summarily remove an elected official for not doing his bidding and replace him with a compliant, stump-broke susbstitute, because there is nothing really different about an elector and any other elected official.

Baca, not being a total twit, sued. Today the Tenth Circuit ruled.

Now, for apparently the first time, a federal appeals court has upheld the right of “faithless electors” to vote with their conscience — a ruling that “throws into question” states’ winner-take-all election systems that bind electors to vote for the state’s popular vote winner, attorneys on Baca’s case said. In a 125-page split opinion Tuesday, a three-judge panel on the U.S. Court of Appeals for the 10th Circuit ruled that Colorado’s decision to nullify Baca’s vote and remove him as an elector was unconstitutional.

“The text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice,” U.S. Circuit Judge Carolyn B. McHugh, an Obama appointee, wrote in the majority opinion, joined by Jerome A. Holmes, a George W. Bush appointee. Mary Beck Briscoe, a Clinton appointee, dissented, arguing the case was moot because no damages could be awarded.


Read the whole opinion.

The impact on the NPVIC nonsense is pretty clear. State parties choose the slate of electors to vote for president. The NPVIC is predicated on the (erroneous) notion that state governments can bind these officials in how they vote. Now its pretty obvious that they can’t. Now that this truly bad idea is pretty much dead, the left is flogging the idea that this means the end of our system of government.

“This court decision takes power from Colorado voters and sets a dangerous precedent,” said Jena Griswold, Colorado’s secretary of state. “Our nation stands on the principle of one person, one vote. We are reviewing this decision with our attorneys, and will vigorously protect Colorado voters.”

Actually, it returns to the voters of Colorado to vote for the candidate of their choice for president instead of having the voters of New York and California making that choice for them.

There may be a trip to the Supreme Court in the future. Even if Colorado doesn’t appeal (I don’t think they will because they know they’ll get their clock cleaned and that will finish the NPVIC for good), there is a conflicting decision from the Washington state supreme court ruling that electors are bound to vote in the way directed. The decision seems like lunacy but it is Washington and the Ninth Circuit so lunacy is sort of the way of life there.


This now seems to put the dream of ending the Electoral College back where it belongs, which is requiring a constitutional amendment. Good luck with that.

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