ELECTORS FREEDOM: OUR LEGAL FIGHT TO ALLOW ELECTORS TO VOTE THEIR CONSCIENCE
The Legal Argument
The Constitution secures to presidential electors the freedom to vote their conscience for president and vice president. Thus, states violate presidential electors’ constitutional rights to vote when they punish an elector who attempts to exercise this constitutional right. We’re helping electors in Colorado and Washington who were threatened or fined by their state government for voting their conscience in 2016 to vindicate this principle and ensure that the Supreme Court sets a precedent on this important but unanswered question before the next election.
We believe this violated our clients’ constitutional rights to vote. But, despite the enormous power that presidential electors have, there remains uncertainty around the scope of their rights to vote. Continuing to pursue these cases now, even after the presidential election is over, is critically important because it will give the Supreme Court a chance to establish the rights of presidential electors before the actions of any elector creates a constitutional crisis.”
We believe the Supreme Court will affirm the electors’ freedom through our cases in 2019. That will give states the opportunity to respond before the next election. If the court rules to affirm the electors’ freedom as we expect, the most likely and effective response would be for states to join the National Popular Vote Interstate Compact. Also, if 270 electors were pledged to the winner of the national popular vote automatically, then the additional electors from non-Compact states would be certain to create a margin significant enough to neutralize any plausible defection by electors in Compact states.
Whether or not the Court ultimately rules that electors are free to vote their conscience, we are hopeful that these cases will be the vehicle for resolving this crucial issue before the next election.
Nemanich v. Colorado Department of State (2017)
We have filed a lawsuit on behalf of three electors in Colorado who sought to defend their constitutional freedom to vote their conscience in the last presidential election as federal electors. Michael Baca, Polly Baca, and Robert Nemanich believed the special circumstances of the last election required that they vote their conscience, contrary to a pre-election pledge. Secretary of State Wayne Williams threatened them with removal, if they indeed did vote against their pledge, as well as criminal prosecution.
Guerra v. Washington State Office of Administrative Hearings (2017)
Washington State fined three electors, Peter Bret Chiafalo, Levi Jennet Guerra, and Esther Virginia John, who voted their conscience, contrary to a pre-election pledge. This case raises the question whether the state of Washington has the constitutional power to compel its electors to vote for a particular presidential and vice-presidential candidate, i.e. whether states may penalize an elector who votes contrary to her pledge, by imposing a civil fine or other penalty. We are supporting the legal defense of these electors to resolve the constitutional question.
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From our Blog
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Bret Chiafalo thinks the Electoral College, which the United States uses to elect the president and vice president, is inherently undemocratic. But as long as the institution exists, says the former presidential elector, it should at least serve a purpose: as a final...
From our Press Room
FOR IMMEDIATE RELEASE Date: September 20, 2017 Third Electoral College Elector Joins Equal Citizens Lawsuit Against Colorado Secretary of State BOSTON, MA - EQUALCITIZENS.US announced today that 2016 Colorado Presidential Elector Micheal Baca has joined the lawsuit...
Equal Citizens Files Lawsuit Against Colorado Secretary of State for Violating Constitutional Rights of Two Electoral College Electors
FOR IMMEDIATE RELEASE Date: August 15, 2017 Equal Citizens Files Lawsuit Against Colorado Secretary of State for Violating Constitutional Rights of Two Electoral College Electors BOSTON, MA – Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at...
Colorado – Michael Baca, Polly Baca and Robert Nemanich v. Colorado Department of State
- Second Amended Complaint – October 25, 2017
- Defendant’s Motion to Dismiss – November 8, 2017
- Plaintiff’s Response to Defendant’s Motion to Dismiss – December 22, 2017
- Reply in Support of Defendant’s Motion to Dismiss – January 19, 2018
- Order on Motion To Dismiss – April 10, 2018
- Opening Brief of Appellants – June 25, 2018
- Opening Brief of Appellants Appendix – June 25, 2018
- Brief for Amicus Independence Institute in Support of Plaintiffs-Appellants – June 27, 2018
- Brief of Amici Curiae Michael L. Rosin and David G. Post – June 27, 2018
- Amicus Curiae Brief of Derek T. Muller In Support of Neither Party – July 2, 2018
Washington – Levi Guerra, Esther v. John, and Peter B. Chiafalo v. Washington State Office of Administrative Hearings
- Petitioners’ Opening Brief – October 24, 2017
- Secretary of State’s Responding Brief – November 13, 2017
- Petitioners’ Reply Brief – December 12, 2017
- Appellants’ Statement of Grounds for Direct Review By The Supreme Court – December 29, 2017
- Answer to Statement of Grounds – January 26, 2018
- Brief of Appellants – May 10, 2018
- Brief of Respondent – July 11, 2018