A Colorado case with the potential to change the power of the Electoral College is now in the hands of the U.S. Supreme Court. On Wednesday, the court heard arguments in Colorado Department of State v. Baca, which could decide the enforceability of state laws that require presidential electors to vote for the candidate who wins the popular vote in their state.
Colorado Attorney General Phil Weiser argued for the state and said the power the Constitution gives to states to appoint presidential electors includes the authority to remove them. He said preserving the ability to remove electors who take bribes to vote a certain way or follow their state’s pledge and then vote for a different candidate is a key concern for the state.
“The chaos that could result from upholding the 10th Circuit’s ruling is one that could occasion a constitutional crisis,” Weiser said when Justice Ruth Bader Ginsburg asked him about the practical consequences of striking down Colorado’s law. “If states have no ability to remove bribed electors, and all that’s left is Congress’s ability to choose to count or not count, the mere fact of bribing electors in an open enough way … ultimately could sway the outcome of presidential elections.”
But notably, when pressed by Justice Stephen Breyer, Weiser said he didn’t know of any actual cases of elector bribery before the first laws were passed to penalize electors who vote against expectations.
The Supreme Court case has come out of a 10th Circuit decision in August 2019, when that court ruled states can’t void votes of presidential electors who vote for a candidate other than who won their state’s general election. Colorado had removed elector Micheal Baca and voided his vote after he cast his vote for John Kasich instead of Hilary Clinton in the 2016 election, and the 10th Circuit ruled Baca’s removal violated his constitutional rights. Then-Secretary of State Wayne Williams warned electors they could be charged with perjury if they did not cast their votes according to state law. Baca was ultimately not prosecuted. Two other electors, Robert Nemanich and Polly Baca (no relation to Micheal Baca), claimed the state unlawfully chilled them from also voting for Kasich. According to previous reports and court records, the electors intended to deny then-candidate Donald Trump electoral votes by casting their ballots for Kasich.
Weiser said states’ power to remove electors isn’t unchecked. Other constitutional provisions can limit the authority, he said, such as prohibiting electors’ removal because of protected characteristics. Jason Harrow, executive director of Equal Citizens, argued for Baca. He said states have wide discretion when appointing electors, such as discerning based on political party, but once electors are appointed, the states have to count their votes.
Justices appeared concerned about the few limits on elector freedom built into Harrow’s arguments. Beyond the requirement for electors to vote for a living person, Harrow didn’t argue for other limitations on their discretion that wouldn’t require a formal process to remove electors, analogous to expelling senators and representatives.
“So the elector can decide, ‘I’m going to flip a coin and however it comes out, that’s how I’m going to vote?’” asked Chief Justice John Roberts.
“Yes, Your Honor, that’s the same discretion that U.S. senators have, representatives have, congressional electors have,” Harrow said. “[Electors], too, are elected officials, and they have that same discretion.” He added electors could face political accountability after an election from their party, since electors in each state are chosen by the political parties.
Along with the constitutional questions in the case, it has also presented a question of whether Baca suffered a personal injury that gives him standing to sue. His suit includes $1 in nominal damages.
“The stakes financially are small, but the stakes constitutionally and personally for Mr. Baca are large and they are sufficient to confer standing,” Harrow told the justices.
And while case law has held the state isn’t a person to file a suit against, Weiser told the justices the state made a strategic decision not to litigate jurisdiction.
When Colorado petitioned the Supreme Court to hear the case last October, it followed a petition filed in another “faithless electors” case decided by Washington’s Supreme Court. The Supreme Court heard arguments in that case right before Colorado’s arguments.
In Chiafalo et al v. State of Washington, three electors voted for Colin Powell for president. Their votes were counted, but the Washington Secretary of State fined them $1,000 each. The Washington Supreme Court ultimately affirmed the state’s law. The petition to the Supreme Court in that case has asked the Supreme Court to side with the 10th Circuit and strike down Washington’s law.
The 10th Circuit’s analysis saw Colorado’s case as different from the case in Washington because of the difference between the penalties each state imposed on the electors – removing electors, and the additional possibility of criminal charges, versus only fining them. But that particular difference in analysis didn’t come up during Wednesday morning’s arguments over Colorado’s law. In a news conference after the arguments, Weiser said he doesn’t expect the Supreme Court to analyze the cases differently on that point, saying the justices will typically vocalize something weighing on their minds.
He said although the court’s need to adapt oral arguments because of the coronavirus pandemic has left a lot up in the air, he would expect a decision by July before the Supreme Court would normally go into summer recess.
—Julia Cardi