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Nicolais: Why the Supreme Court should reject Colorado’s Electoral College argument

As the U.S. Supreme Court considers Colorado’s faithless elector case, it should be wary of overlooking the text of the Constitution in favor of a preferred outcome

There may be no more powerful indicator of a desire to return to normalcy than the incessant bickering of political factions over electoral structures and processes. Over the past week, Colorado took a prominent place in one of those skirmishes.

On Wednesday, the Colorado Attorney General spent an hour arguing that presidential electors must be bound to cast votes for the nominee picked by the people of their state. The case developed after Colorado’s Secretary of State removed Micheal Baca, an elector pledged to Hillary Clinton (who beat Donald Trump by nearly five percentage points in 2016, 48.2% to 43.3%), who tried to cast a ballot for John Kasich, a primary opponent and vocal critic of Trump.

Mario Nicolais

Baca, selected as an elector by attendees of Colorado’s Democratic Party State Convention months before the general election, surely would have preferred Clinton to either Trump or Kasich. But faced by the post-election prospect of a Trump presidency, he made a Quixotic attempt to persuade enough fellow presidential electors – particularly those from the Republican Party – to join him his “anyone but Trump” cause.

In a portent of the Republican Party’s direction, he managed to get only two pledged Republican electors to join his cause.

Personally, I applaud Baca’s audacity. Not because I am an adamantly anti-Trump conservative, but because I think it is necessary for individuals to appeal to courts and assert their rights against government overreach and impermissible practice.

READ: Supreme Court worries about collateral damage — Frodo Baggins for president? — in Colorado’s Electoral College case

Furthermore, the opinion from 10th U.S. Circuit Court of Appeals Judge Carolyn McHugh warmed my jurisprudential heart. It is based on a textualist reading of the Constitution that sets aside both potential outcomes and historical practice in favor of the express words. Furthermore, it quoted liberally from the Federalist Papers, the set of Constitution-contemporaneous documents near and dear to the hearts of conservative attorneys.

I found particular delight in such an opinion being penned by a judge appointed by President Barack Obama. As I have written time and time and time again, judges should not be measured by who appointed them, but rather their judicial philosophy and approach.

READ: Colorado Sun opinion columnists.

In a corollary to the late Justice Antonin Scalia’s dictate that the “judge who always likes the results he reaches is a bad judge,” the best judges do not look past a law’s written words in order to achieve a preferred outcome. In this instance, the preference is shared by both the Colorado Democratic and Republican parties looking to assert control over their chosen electors.

To be clear, I’m not advocating for chaos for the sake of chaos.

While Justice Samuel Alito raised that specter during oral argument and Justice Clarence Thomas seemed concerned about the “Frodo Lives!” crowd, faithless electors have never decided a presidential election. In fact, only 90 of 23,507 have voted for a presidential nominee other than their party’s nominee with more than two-thirds of those deviant votes coming in the 1872 election when the Democratic candidate died before electoral votes were cast.

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In total, our country has had only 24 truly faithless electors. One in a thousand over a 250-year timeframe hardly seems to be the spark for an explosion of chaos.

Even the 2016 election, which accounted for 10 of our country’s faithless electors, shouldn’t give the court pause. Eight abandoned the losing candidate with only two Republicans refusing to cast a ballot for a historically divisive nominee. Much like Baca, most were probably chosen long before either party officially landed on its choice for president.

Consequently, I hope the Supreme Court will think long and hard about abandoning the 10th Circuit’s textual analysis in favor of an expedient outcome. While it might feel like the right thing to do in this case, it could be the wrong thing for our ongoing legal system. 

Courts deciding when and how to overlook the letter of the law is a far greater catalyst for long-term chaos.


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, healthcare, and public policy. Follow him on Twitter: @MarioNicolaiEsq


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