Yesterday, the US 10th Circuit Court of Appeals ruled on a suit over whether states have the authority to force their electors to vote for the winner of the popular vote. It turns out, according to the opinion, the states do not have that authority under the Constitution. At least in Colorado, Utah, Wyoming, Kansas, Oklahoma, and New Mexico, where the 10th Circuit has jurisdiction. But, did this actually change how we vote for President? Not really.
This case may be headed for the Supreme Court, but until then, it seems it’s a good time to remind everyone that they don’t actually vote for the President of the United States, and likely never will. Only electors get to do that, so who are they? How do we choose electors?
United States Constitution
The United States Constitution, Article 2, Section 1 provides the process. Sort of:
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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Essentially, the States and their legislatures have ultimate authority in how to choose their electors. The 12th Amendment to the Constitution clarified the process for how those electors elect the President, and Vice President:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
The Amendment goes on to clarify what shall happen should no President obtain a majority of electoral votes, a process that has only been used twice; 1800 and 1824.
If we look across all 50 states we’d find 50 separate processes to choosing, nominating, or electing electors. Some may resemble each other, some may be identical, and some may be thoroughly unique. Let’s focus on New Hampshire.
New Hampshire Law
Pursuant to RSA 667:21, the state parties have all the power. Electors are chosen during the state party conventions. Held at minimum once after every September primary, but before the last Tuesday of October, the delegates, elected officials whose terms don’t expire, and nominees for office in each party shall convene and choose presidential electors. These electors are certified to the Secretary of State, the Chief Election Officer in New Hampshire, and published on the Secretary of State’s website.
Then, when you head to the ballot box on the “Tuesday next after the first Monday in November,” and vote for “President & Vice President” you’re actually voting for those electors. You’ve never voted for Hillary Clinton, and you’ve never voted for Donald J. Trump, or any other candidate for President or Vice President. The vast majority of us never will.
I was unable to find any NH law that locks the electors to the candidate of their party. Nor is there a section that punishes them for not following the popular vote of New Hampshire. In short, NH law allows the electors of New Hampshire to vote for whomever they want. Just as the US 10th Circuit Court ruled yesterday.