States can bind electors to votes, U.S. Supreme Court rules

Colorado ‘faithless electors’ case at issue in decision

By: - July 6, 2020 6:49 pm

The U.S. Supreme Court in Washington, D.C.

The U.S. Supreme Court ruled July 6 in favor of the state of Colorado — and against “faithless electors” — in a case concerning a member of the Electoral College who tried to vote against the state’s preference in the 2016 presidential election.

The case was closely watched, as some feared an outcome allowing Electoral College members to disregard voters’ decisions could upend the presidential election process.

The Supreme Court sided unanimously with Colorado and, in a similar case, with Washington state.

Colorado’s case revolved around Micheal Baca, an elector who had tried in 2016 to vote for then-Ohio Gov. John Kasich, a Republican, instead of Democratic presidential candidate Hillary Clinton — the state’s popular vote winner — as part of a failed national effort to keep Donald Trump out of the White House.

Two other Colorado electors, Polly Baca and Robert Nemanich, had also planned to vote for Kasich, but only Baca actually did. He was removed from his position by then-Secretary of State Wayne Williams, a Republican.

All three electors then sued the state of Colorado, and the 10th U.S. Circuit Court of Appeals in August of 2019 ruled in their favor. The U.S. Supreme Court reviewed the case, alongside the similar case from Washington, where that state’s Supreme Court ruled that electors could be fined for not voting with the winner of a state’s popular vote.

Justice Elena Kagan wrote the majority opinion for both cases, in which she stated that the Constitution gives states “broad power over electors,” and gives electors themselves no discretion.

Justices Clarence Thomas also sided with the states but wrote a separate opinion, with which Justice Neil Gorsuch concurred, that argued the Constitution “is silent on States’ authority to bind electors in voting,” and thus, individual states can determine how to exercise such authority.

Colorado officials praised the ruling.

“The will of a few unelected presidential electors should never supersede the will of the people, and today’s landmark decision rightly protects Americans’ right to vote and to self-governance,” Colorado Secretary of State Jena Griswold, a Democrat, said in a statement.

Phil Weiser
Attorney General Phil Weiser argued on behalf of Colorado in a case concerning so-called “faithless electors.”

Attorney General Phil Weiser, who argued the case in May on behalf of Colorado (over the phone, due to COVID-19 precautions), called the ruling “historic.”

“With this issue decided before the 2020 election, we can avoid uncertainty, chaos, and confusion in the Electoral College, and protect our nation’s democratic principles and system of stable governance,” Weiser said in a statement.

Attorney Jason Harrow argued on behalf of the electors, saying they had individual discretion to vote for whichever candidate they preferred.

Harrow — chief counsel at EqualCitizens.US, an organization that advocates for voting rights and election reform — said he was “disappointed, because we think the Supreme Court got the Constitution wrong.” But he agreed it was fortunate that the court’s decision came before the 2020 presidential election.

He said the Supreme Court’s ruling still offered hope for another kind of election reform: the National Popular Vote compact.

The National Popular Vote movement has been in the making for years. It aims to enact state laws that bind electors not to the presidential candidate who wins the popular vote in their own state but to the candidate who wins the popular vote nationally. The laws take effect only when enough have been passed that those states possess the majority of Electoral College votes.

Colorado is one of 16 jurisdictions that have passed such laws — though Colorado voters will decide in November whether to approve or reject the law, after a group gathered enough signatures to place it on the ballot for a referendum.

Protect Colorado’s Vote, the campaign urging a “no” vote on the state law, argues that it gives more populous states such as New York and California more political power than those with fewer people.

“Why would a presidential candidate ever again choose to make one of his or her rare Colorado campaign appearances outside the Denver metro under the National Popular Vote agreement?” the campaign’s co-chair, Wil Armstrong, wrote in a recent guest commentary for The Denver Post. “Colorado constitutes a mere 1.7% of the nation’s overall population.”

Currently, the states that have passed National Popular Vote laws comprise 196 electoral votes, according to the movement’s website. The laws will take effect only when states with a total of 74 more electoral votes have passed them.

“It’s totally constitutional,” Harrow says of the National Popular Vote interstate compact. “It treats every vote equally and certainly does make it so that we the people pick the president.”

On its website, the National Popular Vote movement released a statement that argues this week’s Supreme Court ruling does not affect whether states can bind their electors to the results of a national election.

“Both the current system and the National Popular Vote system rely on political parties to vet and select presidential electors who will faithfully vote for the party’s presidential nominee,” the statement says. “The Supreme Court’s decision allows states to pass laws requiring presidential electors to faithfully cast their votes.”

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Faith Miller
Faith Miller

Reporter Faith Miller covers the Colorado Legislature, immigration and other stories for Colorado Newsline.