10th Circuit Sides With ‘Faithless Electors’ in Colorado 2016 Election Case
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.”
In The News
Whether it’s transmission lines going up in flames during California wildfires or the statewide power outages that plagued the state... Read More
Whether it’s transmission lines going up in flames during California wildfires or the statewide power outages that plagued the state of Texas during its unprecedented winter storm, there is no doubt the US energy grid needs an upgrade. An outdated electrical grid is not only dangerous... Read More
GALVESTON, Texas — A federal judge in Texas issued a preliminary injunction on Friday blocking the Biden administration from requiring... Read More
GALVESTON, Texas — A federal judge in Texas issued a preliminary injunction on Friday blocking the Biden administration from requiring that federal workers be vaccinated against the coronavirus. But the ruling by U.S. District Judge Jeffrey Brown is expected to have little impact. As of Friday,... Read More
WASHINGTON — Virginia’s new attorney general continued a hard turn to the right Thursday when he filed documents in the... Read More
WASHINGTON — Virginia’s new attorney general continued a hard turn to the right Thursday when he filed documents in the state Supreme Court asking for a dismissal of a lawsuit against Gov. Glenn Youngkin’s order overturning mask mandates. Youngkin’s executive order last week makes masking in... Read More
WASHINGTON — The Senate Judiciary Committee approved antitrust legislation Thursday that bans Big Tech from giving a preference to their... Read More
WASHINGTON — The Senate Judiciary Committee approved antitrust legislation Thursday that bans Big Tech from giving a preference to their own products and services on their internet platforms. The American Innovation and Choice Online Act responds to criticism that Amazon, Apple, Google and Meta Platforms Inc.’s... Read More
BOSTON — Massachusetts’ wiretap statute, adopted in 1968 as a tool to combat organized crime, is now woefully out of... Read More
BOSTON — Massachusetts’ wiretap statute, adopted in 1968 as a tool to combat organized crime, is now woefully out of date; it needs a major revision to better equip law enforcement for the realities of the 21st century, the state’s governor said on Friday. “As technology... Read More
WASHINGTON — Fulfilling a directive President Joe Biden issued on his first day in office, the Office of Personnel Management... Read More
WASHINGTON — Fulfilling a directive President Joe Biden issued on his first day in office, the Office of Personnel Management on Friday formally raised the minimum wage for federal employees to $15 an hour. The change means a raise for approximately 67,000 federal employees, commencing on... Read More