10th Circuit Sides With ‘Faithless Electors’ in Colorado 2016 Election Case

August 22, 2019 by Dan McCue
Protesters make their last stand before members of the Electoral College gather to vote on December 19, 2016, at the State Capitol for the presidential elections, in Sacramento, Calif. (Marcus Yam/Los Angeles Times/TNS)

A federal appeals court on Tuesday ruled that three presidential electors from Colorado were unconstitutionally forced to cast their Electoral College votes for Hillary Clinton in 2016.

The ruling by a divided 10th U.S. Circuit Court of Appeals is a victory for so-called “faithless electors” who cast their Electoral College votes for someone other than the presidential candidate chosen by a majority of voters in their state.

The three Democratic electors at the center of the case, Michael and Polly Baca and Robert Nemanich, were all required to vote for Hillary Clinton after she carried Colorado in the 2016 contests, but the three wanted to vote instead for former Ohio Gov. John Kasich.

That plan was part of an ultimately fruitless national effort to convince Republican electors to vote for Kasich and deny Donald Trump the presidency.

According to court documents, Michael Baca followed through on his intentions and voted for Kasich, but was immediately replaced by another elector who cast a vote for Clinton. After that, Polly Baca and Nemanich voted for Clinton against their wishes.

All three later sued the Colorado Secretary of State’s office.

Although the lawsuit was initially dismissed on the grounds the three electors lacked standing, the 10th Circuit partially reversed that decision this week, holding that Michael Baca had legal grounds for challenging his dismissal.

“Unlike the president’s right to remove subordinate officers under his executive power and duty to take care that the laws and Constitution are faithfully executed, the states have no authority over the electors’ performance of their federal function to select the president and vice president of the United States,” said U.S. Circuit Judge Carolyn McHugh, writing for the majority.

As a result, she wrote, “the state’s removal of Mr. Baca and nullification of his vote were unconstitutional.”

Lawrence Lessig, a Harvard Law professor and attorney for the electors said in a statement that the “incredibly thoughtful decision” could substantially advance efforts to reform the Electoral College.

“We know Electoral College contests are going to be closer in the future than they have been in the past; and as they get closer and closer, even a small number of electors could change the results of an election,” Lessig said.

“Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election,” he added.

Lessig is the founder of Equal Citizen, a nonprofit that says its mission is “to fix democracy by establishing truly equal citizenship.

He was assisted in the Colorado case by his colleague at Equal Citizens, Jason Harrow, and Denver attorney Jason Wesoky.

The Colorado decision creates a direct conflict with a recent decision of the Washington Supreme Court. Lessig said he plans to ask the U.S. Supreme Court to hear the case this time in the hope that it will issue an opinion prior to the 2020 election.

Wayne Williams, a Republican, was Colorado Secretary of State when Michael Baca was dismissed as an elector. Williams’ successor, Jena Griswold, a Democrat, said Wednesday that she finds the ruling concerning.

“This court decision takes power from Colorado voters and sets a dangerous precedent,” she said. “Our nation stands on the principle of one person, one vote. We are reviewing this decision with our attorneys, and will vigorously protect Colorado voters.”

Political News

Trump ‘Surprised’ at Pushback to Hosting G-7 at His Doral Resort, Chief of Staff Says Geopolitics
Trump ‘Surprised’ at Pushback to Hosting G-7 at His Doral Resort, Chief of Staff Says

MIAMI — President Donald Trump changed his mind about hosting a summit of world leaders at his own resort in Doral after being “surprised at the level of push-back” to last week’s announcement, his acting chief of staff, Mick Mulvaney, said Sunday. Mulvaney, speaking during an... Read More

Judge Could Soon Order SC Republicans to Hold 2020 Primary State News
Judge Could Soon Order SC Republicans to Hold 2020 Primary
October 18, 2019
by Dan McCue

WASHINGTON - A circuit court judge in South Carolina heard more than two hours of oral arguments Friday in a lawsuit challenging the state GOP executive committee's vote last month to forgo a 2020 Republican presidential primary. In the end, Circuit Judge Jocelyn Newman indicated her... Read More

Zuckerberg Defends Facebook's 'Free Expression' Policy in Wake of False Trump Campaign Ads Social Media
Zuckerberg Defends Facebook's 'Free Expression' Policy in Wake of False Trump Campaign Ads
October 18, 2019
by Dan McCue

WASHINGTON - Mark Zuckerberg allowed himself only a brief smile Thursday afternoon as he approached the podium awaiting him on stage in Georgetown University's Gaston Hall. After weeks of criticism over Facebook's decision not to moderate political speech or fact-check political ads, the company's CEO was... Read More

Democrats’ Hope for Quick Impeachment is Looking a Bit More Complicated Impeachment
Democrats’ Hope for Quick Impeachment is Looking a Bit More Complicated

WASHINGTON — House Democrats’ hopes for a short and focused impeachment inquiry against President Donald Trump are being put to the test by a string of new leads that could lengthen their investigation, as well as by some moderate Democrats who remain skeptical about whether the... Read More

Energy Chief Perry Tells Trump He Plans to Leave Post Soon Energy
Energy Chief Perry Tells Trump He Plans to Leave Post Soon

WASHINGTON — Energy Secretary Rick Perry notified President Donald Trump Thursday that he will soon be leaving the post, according to two people familiar with the matter. Perry, one of the administration’s original Cabinet secretaries, enjoyed good rapport with Trump. The former Texas governor has recently... Read More

Trump to Host G-7 Summit at His Doral Resort, White House Says Foreign Affairs
Trump to Host G-7 Summit at His Doral Resort, White House Says

WASHINGTON — President Donald Trump intends to host next year’s Group of Seven conference at his Doral International Resort in Miami in June, the White House confirmed Thursday, a controversial decision certain to raise conflict-of-interest questions given the financial benefit to Trump’s business. Trump first floated... Read More

Straight From The Well
scroll top