States Can’t Remove ‘Faithless Electors,’ 10th Circuit Rules
Split decision in Baca v. Colorado State Department raises specter of Supreme Court review

by Law Week
The Byron White Courthouse

Can a state remove presidential electors and discard their votes when they fail to vote for the candidate dictated by state law? The 10th Circuit Court of Appeals on Tuesday ruled it cannot, laying down an opinion that could reverberate in future elections if not draw an eventual decision from the U.S. Supreme Court.

The 10th Circuit decided 2-1 that the Colorado Department of State violated Micheal Baca’s constitutional rights when it removed him as an elector for refusing to cast his ballot for Democratic nominee Hillary Clinton in 2016. The majority held that not only did Baca have standing to sue over his removal — reversing the district court — but also that his removal along with his inability to cast a vote for vice president violated his 12th Amendment rights.

“[W]e conclude the states may not interfere with a presidential elector who exercises discretion in casting votes for the President and Vice President of the United States,” according to the majority opinion written by Judge Carolyn McHugh and joined by Judge Jerome Holmes. Judge Mary Beck Briscoe dissented.

The decision concerns Colorado’s so-called “faithless electors” in the 2016 presidential election who intend- ed to cast their electoral votes for Re- publican John Kasich instead of Hillary Clinton, whom state statute required them to vote for as she’d won Colorado’s popular vote. Micheal Baca was removed as an elector when he cast a vote for Kasich, and Polly Baca (unrelated) and Robert Nemanich claimed they were unlawfully chilled from doing so, according to their lawsuit against the Colorado Department of State.

To read the rest of this story and other complete articles featured in the Aug. 26, 2019 print edition of Law Week Colorado, copies are available for purchase online.