Colorado is asking the U.S. Supreme Court to decide whether the people picked to cast Electoral College votes are bound by their state’s rules on how to vote — a decision that has the potential to upend the way America picks its president ahead of the 2020 election.
“The idea that nine electors in Colorado that are unelected, unaccountable and that Coloradans really don’t know could disregard our state law and the outcome of the general election is really unfathomable,” Colorado Secretary of State Jena Griswold said Wednesday in announcing the action with Attorney General Phil Weiser. “This is a major decision, and we are hopeful the Supreme Court will do the right thing and protect our constitutional democracy.”
The case is about what happened a few weeks after the 2016 election, when three Democratic Party electors, Micheal Baca, Polly Baca and Robert Nemanich, were told by then-Secretary of State Wayne Williams that state law required them to vote for Hillary Clinton because she won Colorado’s popular vote. The three Democrats wanted to vote for Republican John Kasich, then-governor of Ohio, as part of a national effort to convince electors to break their states’ rules and deny Donald Trump the 270 Electoral College votes needed to become president.
They wanted to be “faithless electors.”
Polly Baca and Nemanich eventually agreed to vote for Clinton, but Micheal Baca did not. Williams, a Republican, ultimately replaced him, and the three electors sued. Weiser and Griswold, following in the footsteps of their Republican predecessors, defended Willams’ decision.
A lower court dismissed the lawsuit, ruling that the electors lacked standing. The 10th Circuit reversed part of that decision in August when it wrote that Micheal Baca could legally challenge his dismissal, and “the state’s removal of Mr. Baca and nullification of his vote were unconstitutional.”
That’s the opposite of the way Washington State’s Supreme Court ruled in May when it upheld $1,000 fines levied against its own faithless electors.
“There’s a different rule of law in Washington than there is in Colorado. That is not healthy,” Weiser said. “This is a basic constitutional principle that deserves a uniform standard.”
Attorneys for the electors in both Washington and Colorado agree the nation’s top court should settle the question.
“Colorado is absolutely right that the Supreme Court must hear this case,” said Lawrence Lessig, founder of Equal Citizens and one of the lawyers for the electors. “And it must do so as soon as possible before this unsettled issue causes chaos in the 2020 election or one soon after.”
The way the Electoral College works is each state gets a number of votes based on its number of congressional members. Colorado, for example, has nine Electoral College votes. Those votes are cast by electors who are chosen by the Republican and Democratic parties during their district and state conventions. If the Republican candidate wins the popular vote in Colorado, then the nine Republican electors get to cast their votes. If the Democrat wins, then it’s the Democratic electors who vote in December.
Neither the U.S. Constitution nor federal law requires electors to vote according to the results of the popular vote in their states. However, 28 states have laws binding electors’ votes to the winner of the popular vote and some of those, like Colorado, include punishing “faithless electors” with fines and even prosecution. It’s those laws that are being called into question by this lawsuit.
Weiser said he believes the power given by the Constitution to appoint electors implies a power to remove them for not fulfilling their duties. And, more importantly, allowing electors to disregard the votes cast by residents of their states “represents is a threat to the shared understanding of how our constitutional democracy works.”
Jason Harrow, co-counsel for the electors, told The Denver Post that the Constitution gives states the power to appoint electors but not to control them.
“Those are two very different things,” Harrow said.
For example, the governor of Colorado appoints U.S. senators when a vacancy arises. But no one, Harrow said, would argue that former Gov. Bill Ritter had the authority to remove Democratic Sen. Michael Bennet after he named him in 2009.
“They (electors) are independent officials, and that’s really the crux of our argument,” he said.
