Rush is a professor of politics and law and the director of the center for international education at Washington and Lee University.
This spring, the Supreme Court will hear arguments in Colorado Department of State v. Baca and then decide if members of the Electoral College are bound to abide by the laws of the states from which they hail.
In the case, Michael and Polly Baca as well as Robert Nemanich — electors from Colorado in 2016 — assert that this year's (and all future) electors have the right to vote for anyone, regardless of how the people of Colorado vote. The Supreme Court chose to hear the case because of a conflict between two lower courts. The Washington Supreme Court ruled a state could bind its Electoral College delegates. In Colorado, the 10th U.S. Circuit Court of Appeals ruled that this was not the case.
The Baca case is vexing for numerous reasons. Foremost, it highlights once again the arcane and undemocratic manner in which the United States elects its presidents. According to the Constitution, one needs a majority of the electoral college votes — not a majority of the popular vote — to win the election. For most of the country's history, the winner received a majority of both. But in 2000 and again in 2016, George W. Bush and Donald Trump did not win the popular vote.
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Rush is a professor of politics and law and the director for International Education at Washington and Lee University.
With the presidential election looming, worried observers of politics have already asked whether the Electoral College will again deliver a victory to the candidate with less than a majority of the popular vote.
Critics like Vox's Ezra Klein contend that this phenomenon is not only undemocratic, but also politically biased, because Republicans were the beneficiaries of both of these Electoral College hiccups. "American politics is edging into an era of crisis," Klein writes.
But presidential elections – and the occasional hiccups like 2000 and 2016 – represent nothing less than the smooth working of the constitutional system's allocation of power among the states.