The case began in 2016 when three of Colorado’s nine electors, the “faithless” electors, voted for John Kasich instead of Hillary Clinton in an attempt to undermine Trump’s election.
By state law they were supposed to cast their votes for Clinton, who won the most votes in the state. One elector flatly refused and the Colorado secretary of state replaced him with someone who voted for Clinton. The other two who had threatened a protest gave in under the threat of being replaced.
But now the 10th U.S. Circuit Court of Appeals has ruled the state was wrong.
The judges wrote: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for president and vice president with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that constitutional right.”
The court said the Electoral College “did not exist before ratification of the federal Constitution, and thus the states could reserve no rights related to it under the Tenth Amendment.”
“Rather, the states possess only the rights expressly delegated to them in Article II and the Twelfth Amendment. Those constitutional provisions grant states the plenary power to appoint its electors. But once that appointment process is concluded, the Constitution identifies no further involvement by the states in the selection of the president and vice president. And the states’ power to appoint, without any duty to take care that the electors perform their federal function faithfully, does not include the power to remove.”
The judges said the Constitution “provides a detailed list of procedures that must be performed by specific actors — not including the states – after appointment.”
“The electors must list all votes cast … certify that list, and send it to the president of the Senate. Even where an elector violates a state-required pledge to vote for the winners of the state popular election, there is nothing in the federal Constitution that allows the state to remove that elector or to nullify his votes.
“And in the absence of such express authority, the states may not interfere with the electors’ exercise of discretion in voting for president and vice president by removing the elector and mollifying his vote.”
The decision could create uncertainty in presidential elections as voters will be dependent on the integrity of their electors to follow the will of the popular vote to choose a president.
The decision also creates the same turmoil for advocates of the National Popular Vote interstate compact, a coalition of states that have agreed to give their votes to the candidate who gains the most votes nationally.
The Colorado Sun reported the case is expected to be appealed to the U.S. Supreme Court.
Elector Michael Baca was the one who refused to vote for Clinton and instead tried to back John Kasich, then Ohio governor. Colorado’s secretary of state at the time, Wayne Williams, ordered him to vote for Clinton, and when he refused, replaced him.
Two other electors who threatened a rebellion, Polly Baca (unrelated to Michael) and Robert Nemanich, bowed to Williams’ orders and voted for Clinton.
The appeals court said: “Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector. Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote-binding provision.”
The 125-page opinion was written by U.S. Circuit Court Judge Carolyn Baldwin McHugh.
The current secretary of state in Colorado, Jena Griswold, warned of the “extremely dangerous precedent.”
“We are reviewing this decision,” she said.
“This is an incredibly thoughtful decision that could advance substantially our campaign to reform the Electoral College,” explained Lawrence Lessig, a lawyer who fought the state’s punishment of Baca.
“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.”
Republican former Deputy Secretary of State Suzanne Staiert, who worked on the case, said the court has thrown out what voters wanted in Colorado. Lawmakers may now be required to act, she said.
The state currently allows electors to be chosen by political parties at statewide assemblies, with the party whose presidential candidate wins casting the votes.
The Sun said: “Without a remedy, the ruling could affect Colorado’s recent adoption of the national popular vote compact, which mandates that the state’s presidential electors support whichever presidential candidate wins the most votes nationally and not necessarily in Colorado. The compact only goes into effect if the number of states that join equal 270 Electoral College votes, the amount needed to win the presidency, a bar that’s not close to being met.”
The report said, “Griswold said that since the 10th Circuit’s ruling says that Colorado law cannot compel an elector to vote one way or the other, the national popular vote compact’s mandates could be ignored under the decision.”