Today, October 16, Colorado Secretary of State Jena Griswold and Colorado Attorney General Phil Weiser announced that they will be petitioning the U.S. Supreme Court to hear a case that has been working its way through state and district courts with a contentious question: Can presidential electors vote for a candidate other than the one who wins the popular vote in the state?
"Unelected, unaccountable presidential electors should not be allowed to decide the presidential election for all of us," Griswold said at a press conference. "The foundation of our nation is at risk."
Baca v. Colorado Department of State, also known as the "faithless electors" case, was triggered after the 2016 presidential election. Colorado law binds its nine electors to vote for the winner of the popular vote in the state, in that case Hillary Clinton. Three of them — Polly Baca (a former Democratic state senator), Michael Baca (no relation to Polly) and Bob Nemanich threatened to "go rogue" and vote for someone else — not because they objected to Clinton, but because they wanted to convince enough electors to vote for a moderate Republican, as an eleventh-hour attempt to keep Trump out of the White House.
When Colorado voters go to the ballot to vote for president, they most likely assume that their vote is automatically counted toward the state's nine electoral votes. But it's actually more complicated than that. The electors are real people, and the Constitution gives each state the authority to appoint its own electors; in Colorado, each major party nominates them during their state party convention.
But although electors almost always vote for the candidate who wins the popular vote in their state, the Constitution does not stipulate that they must do so. In fact, some framers of the Constitution intended the Electoral College to be a deliberative body in which each elector decides on his own rather than representing the will of the people in their respective states. As Alexander Hamilton wrote in Federalist No. 68, the presidential election should be decided “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation. ... A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”
Michael Baca thus called the movement he was trying to spearhead the “Hamilton electors,” arguing that "the Electoral College should act as a Constitutional failsafe against those lacking requisite qualifications, ability, and virtue from becoming President."
After a controversial push in which several electors were targeted with death threats and Trump tried to intervene, seven electors from Hawaii, Texas and Washington voted for politicians other than Trump or Clinton. Three electors from Colorado, Maine and Minnesota defied state laws that bind electors to the state popular-vote winner; 29 states and the District of Columbia currently have such laws on the books. After Michael Baca voted for John Kasich, then-Colorado Secretary of State Wayne Williams removed him from the position; Polly Baca and Nemanich agreed to vote for Clinton rather than be removed.
After the electoral college voted, Baca, Baca and Nemanich filed a lawsuit in federal district court (a previous lawsuit in state court had been dismissed) claiming that Colorado had no authority to bind them to follow the popular vote. They appealed that decision to the 10th Circuit, which in a reversal of two other district court decisions, ruled in August that Williams's removal of Baca as an elector was unconstitutional.
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That's the question that Griswold and Weiser are now asking the Supreme Court to take up. They believe the court will do so, they said. Both sides, in fact, are pushing it now to avoid emergency litigation in the 2020 election, which could happen if there’s no clear-cut answer on this constitutional question. Griswold and Weiser say that if the court does not rule in their favor, it could send a message that undercuts the entire electoral system.
"If the electoral college system is unhinged from Colorado state law and others like it, people then will not know who they're voting for, because currently they believe they're voting for a party and a president. If you pull that rug out from under people, it will be disruptive to say the least," Wesier said.
In 2020, Coloradans will also decide whether to pull out of the Popular Vote Compact, which would effectively override the Electoral College system by agreeing to have electors vote for the winner of the national (instead of state) popular vote. Though the faithless elector case brings to light the fact that people do not elect the president directly, and treads on issues of whether states can redirect their own electors, Griswold and Weiser differentiated the case from the question of whether we should use the electoral college at all.
"Under our system, the nine people are required under state law to vote for the person who the public believes they're voting for," Weiser said. "We are, in this case, fighting to preserve that state law and that system of constitutional democracy that we've lived with in Colorado."