The U.S. Supreme Court on Monday agreed with Colorado’s argument that the state should be able to remove presidential electors who ignore the vote of the people in a closely watched ruling that threatened to have major consequences in the upcoming election by reshaping the Electoral College.
In a unanimous decision, the justices sided with Colorado Attorney General Phil Weiser’s argument that if the state doesn’t have the ability to remove presidential electors bribery and political chaos could ensue.
“Today we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so,” Justice Elena Kagan wrote in delivering the opinion.
Kagan said that states can instruct their electors “that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”
Justices Stephen Breyer, John Roberts, Ruth Bader Ginsburg, Samuel Alito, Sonia Sotomayor and Brett Kavanaugh agreed with Kagan’s ruling, which included references to the television show “Veep” and the Broadway musical “Hamilton.”
Justices Clarence Thomas and Neil Gorsuch filed an opinion concurring with their colleagues mostly along the lines of state’s rights.
The Supreme Court made the ruling in Colorado’s case after deciding in a companion case out of Washington state that states have the ability to bind electors to follow the will of the voters.
“What we faced in this case is the threat of a constitutional crisis,” Weiser said. “When the American people, when Coloradans vote in November, they expect their votes to be counted. They expect electors to act with fidelity to what the people of the state did.”
In making the ruling, the Supreme Court reversed the decision of the 10th U.S. Circuit Court of Appeals, based in Denver, which last year said that state’s cannot remove presidential electors for any reason.
The case stems from the 2016 presidential election when one of Colorado’s nine presidential electors, Micheal Baca, attempted to cast his Electoral College ballot for Republican John Kasich, then Ohio’s governor, instead of Democrat Hillary Clinton, who won Colorado’s presidential election over Republican Donald Trump.
By backing Kasich, Baca was attempting to deny Trump the presidency by joining with other presidential electors across the nation in an act of defiance. The idea was to collect enough electoral college votes for someone other than Trump to become president.
The electors were called “faithless” because of their decision to ignore the decision of voters in their states.
However then-Colorado Secretary of State Wayne Williams, a Republican, removed Baca as an elector rather than let him back Kasich. Two other presidential electors in Colorado, Robert Nemanich and Polly Baca, were planning to join Micheal but ultimately decided against it. Polly Baca is unrelated to Micheal Baca.
Colorado, like more than 30 other states and the District of Columbia, has a law binding presidential electors to vote for the presidential candidate who wins the state’s popular vote.
Baca sued, along with Nemanich and Polly Baca, and, after a long legal road, the 10th Circuit Court of Appeals sided with him, ruling that it was unconstitutional to remove a presidential elector and striking down Colorado’s laws to bind an elector’s vote to the will of the state’s voters.
Colorado challenged the ruling before the U.S. Supreme Court.
Baca’s attorneys have argued that the U.S. Constitution gives electors the right to cast their votes for whomever they want, despite state laws to the contrary.
But the U.S. Supreme Court disagreed.
“Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion,” Kagan wrote. “The Constitution is barebones about electors.”
She added: “The Electors’ constitutional claim has neither text nor
history on its side.”
Colorado and Washington are among more than 30 states with laws binding presidential electors to follow the will of the voters. Observers wondered how the case may impact the 2020 presidential election if the court invalidated those laws.
Weiser and Colorado Secretary of State Jena Griswold, both Democrats, warned of political chaos if the Supreme Court did not rule in their favor. Griswold said the outcome of the case would affect “the very foundation of our nation.”
“The people will be the influence on deciding how electoral votes go,” Griswold said in a news conference after the decision handed down. “I will not allow presidential electors to disenfranchise Coloradans.”
Griswold called the ruling a “crisis averted.”
Colorado Gov. Jared Polis weighed in to laud the decision. “Until our country can fully reform our outdated electoral college rules, at least the vote of the people will be reflected by our electors,” he said in a written statement.
In the Washington case, the Washington Supreme Court upheld $1,000 fines for three presidential electors there who also tried to block Trump from becoming president by disregarding the will of voters and backing Colin Powell, the former U.S. secretary of state.
Nemanich, one of the Colorado presidential electors involved in the case, said he was, of course, disappointed by Monday’s outcome. But he said his broader goal of sparking a conversation about the efficacy of the Electoral College was achieved.
“The purpose of it was not to get a decision so we could get more chaos in the Electoral College,” he told The Colorado Sun on Monday. “The purpose, originally, for us was to shed a huge spotlight on the Electoral College and try to start educating America.”
The legal team representing the electors also didn’t see Monday’s decision as a total loss.
“When we launched these cases, we did it because regardless of the outcome, it was critical to resolve this question before it created a constitutional crisis,” Lawrence Lessig, a Harvard Law School professor who represented the presidential electors, said in a written statement Monday. “We have achieved that. Obviously, we don’t believe the Court has interpreted the constitution correctly. But we are happy that we have achieved our primary objective — this uncertainty has been removed. That is progress.”
Lessig’s organization, EqualCitizens.US, pointed out that there are still states without laws binding presidential electors to follow the will of their state’s voters.
Separately, Colorado voters in November will decide whether the state should sign onto the national popular vote compact, which, if enough states sign on, would effectively bypass the Electoral College.
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