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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.”

November 29, 2021
by Dan McCue
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