Three Colorado electoral college voters who argued that their constitutional rights were violated when they were forced to vote against their conscience in the 2016 presidential election will get their day in a federal appeals court Thursday.
The U.S. Court of Appeals for the 10th Circuit will hear arguments in the case of the three “faithless electors” and determine whether Colorado’s law that requires electors choose the same candidate selected by the popular vote is constitutional. Attorneys for the electors — who wished to cast their votes for someone other than Hillary Clinton in an attempt to bar Donald Trump from the presidency — argued that the U.S. Constitution protects electors’ right to vote their conscience.
Colorado’s federal district court dismissed the group’s lawsuit in April and the judge said that the plaintiffs were asking the court to “strike down Colorado’s elector statute that codifies the historical understanding and long-standing practice of binding electors to the people’s vote, and to sanction a new system that would render the people’s vote merely advisory.”
But the electors’ attorney, Jason Harrow of the nonprofit Equal Citizens, said he expects the appeals court judges to look at the case differently. The appeals court previously considered a separate but related issue when two of the electors asked the judges to unbind their vote, which the court declined.
Harrow saw hope in the judges’ decision, which suggested that it may be unconstitutional for a secretary of state to remove an elector for voting against the popular vote. Two of the three judges who issued that decision will hear the oral arguments in the lawsuit Thursday, Harrow said.
“We think they meant what they said,” he said.
The lawsuit stemmed from the 2016 electoral college vote that became unexpectedly chaotic after then-Secretary of State Wayne Williams replaced an elector, Michael Baca, because he refused to vote for Clinton. Baca attempted to vote for former Ohio Gov. John Kasich as part of a nationwide attempt to convince Republican electors to cast their vote for a different, non-Trump Republican.
The movement urged Democrat electors to pledge their votes to a Republican, like Kasich, in hopes that Republican electors would follow suit, depriving Trump of the 270 electoral votes necessary to become president. The effort failed.
The lawsuit representing Baca and two other electors, Polly Baca and Robert Nemanich, argues that Williams violated electors’ rights when he removed Baca and forbade them from casting their votes for anyone other than Clinton, who won the state’s popular vote. Williams also referred Baca to then-Colorado Attorney General Cynthia Coffman for criminal investigation. Coffman declined to file charges.
Polly Baca and Nemanich followed state law and voted for Clinton but later said they would have cast their vote otherwise if not forced to vote for Clinton.
The case could also become a good candidate for the U.S Supreme Court, Harrow said. The highest court has never considered whether electors are required to follow the direction of the popular vote.
“This question is unresolved, which is kind of remarkable considering there’s 200 years of constitutional law,” he said. “It goes to the very structure of what our electoral system is.”
