Colorado’s presidential electors do not have to vote for the candidate who wins the state’s popular vote, the powerful 10th U.S. Circuit Court of Appeals in Denver ruled Tuesday evening, a decision that could have major ramifications for future elections.
A three-judge panel on the federal appellate court ruled 2-1 against the Colorado Secretary of State’s Office in a case dating back to the 2016 presidential election, when three of the state’s nine presidential electors — the state’s Electoral College voice — tried to vote for candidates other than Democrat Hillary Clinton, who won handily in the state.
Then-Secretary of State Wayne Williams ordered them to cast their votes for Clinton or be replaced. One of the electors, Micheal Baca, refused and tried to back Ohio’s then-Gov. John Kasich, a Republican, as part of a national attempt by electors to block Donald Trump’s presidency.
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Baca, termed a “faithless elector,” was removed and replaced with another elector who voted for Clinton. The two other electors who also wanted to vote for Kasich — Polly Baca (unrelated to Micheal) and Robert Nemanich — opted to vote for Clinton instead of being replaced.
But the 10th U.S. Circuit Court of Appeals ruled that Williams actions trying to enforce Colorado’s law binding presidential electors to vote for the candidate who won the popular vote violated the Constitution.
“Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector,” the court said in a 125-page opinion written by U.S. Circuit Court Judge Carolyn Baldwin McHugh. “Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote-binding provision.”
The court added that the Constitution provides “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.”
Colorado Secretary of State Jena Griswold told The Colorado Sun on Wednesday that the ruling “sets an extremely dangerous precedent that would enable a few people to override the majority of Colorado votes.”
“Our nation stands on the principle of one person, one vote,” the Democrat followed up in a written statement to The Colorado Sun. “We are reviewing this decision with our attorneys and will vigorously protect Colorado voters.”
The group that brought the challenge celebrated the “landmark opinion.”
“This is an incredibly thoughtful decision that could advance substantially our campaign to reform the Electoral College,” Lawrence Lessig, the Harvard University law professor who leads the group Equal Citizens and argued the case on behalf of the three electors, said in a written statement. “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.”
Jason Harrow, another attorney with Equal Citizens, said the group’s goal is to avoid havoc and get a clear answer on whether or not electors are bound to follow state laws directing them on how to vote. “We need an answer to whether or not it’s legal,” he said.
Polly Baca, a former state lawmaker who wants to see the Electoral College reformed, said the decision was “the ruling we’ve been waiting for.”
“I’m delighted with the court’s ruling,” she said. ” I think the court upheld the Constitution of the United States.”
U.S. Circuit Judge Mary Beck Briscoe wrote the dissenting opinion in the case, arguing that the legal challenge from Micheal Baca, Polly Baca and Nemanich was moot because there were no damages that could be awarded.
Colorado’s former Deputy Secretary of State Suzanne Staiert, William’s No. 2 who worked on the case, said the ruling effectively “throws out the will of the voters.” The Republican thinks the legislature will now have to take a hard look at how presidential electors are picked in Colorado. Right now, they are chosen by political parties at their statewide assemblies.
She said the ruling means “the will of the voters is tossed out and instead it’s the will of one elector. They get to decide regardless of how the people decided.”
Staiert added: “Part of the problem in Colorado is we don’t know who our electors are when we cast a ballot, so now we have people who are controlling our votes and they’re not filing campaign finance reports, they’re not telling us where their allegiances are, they are being nominated by the party and then those people, without any transparency, can subvert the vote of 3 million Colorado voters and pick the candidate of their choice instead of the candidate of the people’s choice.”
Griswold said that her office will move quickly to find a resolution.
“We are less than 24 hours since the decision has come down from the 10th Circuit and we’re really reviewing the decision with our attorneys and looking at both legal and legislative solutions,” she said.
Griswold added that she and Williams are in agreement on the issue and that they spoke Tuesday night about the ruling.“The idea that all voters should be heard isn’t a partisan issue. It’s an American issue,” she 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.
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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. She reiterated, however, that she’s optimistic a remedy can be found before that situation would ever arise and her office is still reviewing the long, complex ruling to understand its impact.
The case had been earlier dismissed by a lower court, with U.S. District Court Senior Judge Wiley Daniel writing in April 2018: “Plaintiffs ask this court to strike down Colorado’s elector statute that codifies the historical understanding and longstanding practice of binding electors to the people’s vote, and to sanction a new system that would render the people’s vote merely advisory.”
The case will likely now go to the U.S. Supreme Court for the possibility of further review.