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U.S. Supreme Court agrees to hear Colorado’s presidential electors case. Here’s why the state thinks it will win.

The key question in a case that could affect the entire Electoral College: Do presidential electors have to follow the popular vote?

The U.S. Supreme Court. (USDA photo by Ken Hammond)
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The U.S. Supreme Court on Friday agreed to hear Colorado’s appeal of a federal court ruling  that allows presidential electors to ignore the will of the people and back whichever candidate they want.

Colorado Attorney General Phil Weiser and Colorado Secretary of State Jena Griswold last October petitioned the court to hear the case, hoping to avoid potential legal and political chaos come November. Griswold has said the outcome affects “the very foundation of our nation.”

Weiser praised the Supreme Court’s decision, saying the case is “ripe for review” and that he’s hopeful the panel will rule in Colorado’s favor and not fundamentally alter the Electoral College, the U.S. system of electing presidents.

The situation dates back to 2016, when then-Secretary of State Wayne Williams removed a presidential elector who refused to vote for Hilary Clinton — even though Clinton won the popular vote in Colorado. In August, the 10th U.S. Circuit Court of Appeals, based in Denver, ruled that the removal of the elector, Micheal Baca, was unconstitutional.

Baca, one of Colorado’s nine electoral voters, tried to cast his ballot for then-Ohio Gov. John Kasich, a Republican, instead of Clinton as part of an attempt by a handful electors across the country to block Republican Donald Trump from becoming president. But the 10th Circuit found that Colorado didn’t have authority to remove Baca as an elector, eliminating the state’s ability to bind electors to follow the will of Colorado voters. 

Two other electors — Polly Baca (she isn’t related to Micheal) and Robert Nemanich — intended to follow Baca’s lead but ultimately did not. The three have been battling with the Colorado Secretary of State’s Office in court since the 2016 election. 

They are represented by Equal Citizens, which is led by Harvard Law professor Lawrence Lessig. The three 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

President Donald Trump. The Colorado electors case began when several presidential electors tried to deny Trump the presidency in 2016. (White House handout)

“We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections,” Lessig said in a written statement. “My team and I will get right to work on our briefs, and we look forward to a full and fair hearing.”

Nemanich, who works as a discipline and suspension coordinator in Colorado Springs, where he lives, said the U.S. Supreme Court’s decision to take the case will give the three Colorado presidential electors “the exposure we are looking for.” He feels the Electoral College is unfair and would prefer a system where the winner of the national popular vote would become president. 

Clinton actually won more votes than Trump nationally, but lost the presidency to him because he won the Electoral College in 2016. 

“We have to get back to what a Democracy is and that will be a big way of fixing our totally split up, partisan political process and government,” Nemanich said Friday. “Once politicians are beholden to the voters, they tend to start following what the voters wishes are or they get thrown out.” 

Nemanich says he absolutely plans to travel to Washington, D.C., for oral arguments before the U.S. Supreme Court. 

“I wouldn’t miss that for the world,” he said, adding that he’s been talking to national media outlets about the case. “We’re making history.”

Weiser says he thinks Colorado’s case is rock solid.

“We have a very strong textual argument,” Weiser said last week, pulling out a pocket-sized copy of the U.S. Constitution. 

Colorado Attorney General Phil Weiser at a news conference in March announcing a lawsuit against the Trump administration. (Jesse Paul, The Colorado Sun)

He cited the Constitution’s provision that “each state shall appoint in such manner as a legislature may direct electors.”

“I would say the power to appoint includes the power to remove,” Weiser said. “There’s a whole line of Supreme Court cases on this point. If the other side’s argument wins, that means if an elector took a bribe, the state is powerless to do anything. And I view that to be untenable, both as a matter of text of the Constitution and of common sense.”

Weiser expects a decision, which will have national implications, to be handed down before the November election. The next step involves oral arguments before the U.S. Supreme Court.

Most states have laws binding presidential electors to vote for the presidential candidate who wins the popular vote in the state.

In Colorado, presidential electors are chosen by individual political parties at their respective state conventions.

“Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to voters’ choices and state law,” Griswold said in a written statement. “When Americans vote in the presidential election, we are exercising our most fundamental right – the right to self-governance.”

The Supreme Court on Friday also agreed to hear a similar case out of Washington state in which judges ruled that three presidential electors there, who also tried to block Trump from becoming president, should be fined $1,000 for declining to follow the will of voters and cast their ballots for Clinton.

The Washington and Colorado cases were merged to be heard simultaneously by the Supreme Court.


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