Colorado is asking the U.S. Supreme Court to reconsider a federal court ruling that allows Electoral College presidential electors to support whomever they want and not necessarily the candidate who wins the state’s popular vote.
Colorado Secretary of State Jena Griswold and Attorney General Phil Weiser, both Democrats, announced the appeal on Wednesday at a news conference.
“Our country is at risk,” Griswold said. “The very foundation of our nation is at risk.”
Weiser said the case represents a “threat to our shared understanding of how our constitutional democracy works.”
In August, the Denver-based 10th U.S. Circuit Court of Appeals ruled that then-Secretary of State Wayne Williams’ decision in 2016 to remove Micheal Baca, a presidential elector who refused to vote for Democrat Hillary Clinton, was unconstitutional. Clinton won the state’s popular vote.
Williams made his decision based on a Colorado law requiring presidential electors to support the candidate who wins the state’s popular vote.
But the court found that “presidential electors (have) 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.”
“Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector,” 10th Circuit Judge Carolyn Baldwin McHugh wrote in a 125-page opinion. “Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote-binding provision.”
Baca tried to cast his vote for then-Republican Ohio Gov. John Kasich instead of Clinton as part of a national attempt by electors to deny Donald Trump the presidency. Two other Colorado electors wanted to follow suit but decided against it after seeing what happened to Baca, who was threatened with legal consequences that were never acted upon.
Baca and the two other electors, Polly Baca (unrelated to Micheal) and Robert Nemanich, have been locked in a legal battle with the Colorado Secretary of State’s Office since the 2016 election, seeking clarification on the relationship between the state’s vote-binding laws and the constitutional powers of a presidential elector.
The trio have been referred to as “faithless” or “Hamilton” electors, the latter referring to U.S. founding father Alexander Hamilton, who helped outline the role of presidential electors in the Constitution.
Nemanich, Micheal Baca and Polly Baca are represented by the group Equal Citizens, which says its goal is to avoid chaos and get a clear answer on whether electors are bound to follow state laws directing them how to vote. The majority of U.S. states have laws requiring presidential electors to vote for the candidate who wins the state’s popular vote.
Micheal Baca said in a written statement that while he disagrees with Colorado’s law aiming to bind his vote as a presidential elector, he is happy to see the case going before the Supreme Court. “That would benefit Coloradans and the whole country.”
However, the question now looms large over the 2020 presidential election in Colorado, which would likely be affected by any decision — or indecision — by the Supreme Court.
“If it stands, this decision enables presidential electors to decide a presidential election without regard to voters’ choices and state law,” Griswold said. “Every vote needs to matter. Voters must have the assurance that presidential electors will represent them at the Electoral College. If not, the presidential election may be clouded by confusion and uncertainty.”
She said that, without clarity, it’s also likely that there will be more challenges to the Electoral College process around the nation surrounding the 2020 presidential election. Griswold raised the question about election security being affected as well.
“This decision cannot stand,” Griswold said. “The foundation of our nation is at risk.”
Four of the nine justices must agree to accept a case before it is heard by the Supreme Court. Weiser said he’s confident that the panel will take up the case, and urged them to do so quickly, before it becomes an issue during the 2020 presidential election.
“We need the court to hear this case this term because we should not see a spectacle of emergency litigation during the course of an election,” Weiser said. “Instead, what we need to see is a careful and thoughtful decision on the merits of this issue, which is now something that has split different circuits.”
He pointed to that difference of opinion — a case that’s been filed with the Supreme Court of out of Washington — as a solid indicator that the court will take up the issue.
In the Washington case, Equal Citizens is representing three presidential electors from who also tried to deny Trump the presidency. The Washington Supreme Court upheld a state law under which the three were each fined $1,000 for refusing to back Clinton, the popular vote winner, and casting their votes instead for former U.S. Secretary of State Colin Powell.
They have asked the U.S. Supreme Court to consider that case and specifically whether a state has the power to enforce how a presidential elector casts his or her ballot.
Lawrence Lessig, the Harvard law professor who leads Equal Citizens, said in a written statement that “Colorado is absolutely right that the Supreme Court must hear this case. And it must do so as soon as possible, before this unsettled issue causes chaos in the 2020 election or one soon after.”
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If accepted, the Colorado case would likely represent the most consequential decision to come out of the state since 2018, when the Supreme Court ruled in the legal fight between a Lakewood baker and the same-sex couple for whom he refused to make a wedding cake.
In that case, the court ruled against the state’s sanctioning of the baker, but declined to address broader questions about the right of private businesses to refuse customers based on moral and religious beliefs.
Other major election-related cases out of Colorado have been decided by the Supreme Court, including one removing a ban on paid signature gatherers and another striking down strict requirements for petition circulators.
Weiser said he will be reaching out to other states to work with them on the case because they will likely be affected by any Supreme Court decision on the matter.
Griswold said she is looking at potential legislative solutions to be brought during the 2020 lawmaking term in Colorado, but she did not go into specifics.
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