High Court to Decide If ‘Faithless Electors’ Can Defy Popular Vote

January 17, 2020 by Dan McCue
A line of spectators lines up outside the U.S. Supreme Court on the first day of its 2019-2020 term. (Photo by Dan McCue)

WASHINGTON – The Supreme Court on Friday agreed to decide an issue that could have a profound effect on the outcome of the 2020 election — whether members of the Electoral College can defy their state’s choice for president and cast a vote for someone else.

Last year, the 10th U.S. Circuit Court of Appeals ruled that electors “have a right to make a choice” when they vote for president regardless of promising to abide by the outcome of the presidential election in their state.

If that ruling were to stand it could give a single “faithless elector” or a group of them the power to sway the outcome of a close vote in the Electoral College, adding a new level of suspense to presidential elections.

It might also mean the outcome of a close election could be in doubt for weeks after election day.

The first of the two consolidated cases the court will hear comes from Colorado. In 2016, Michael Baca was chosen to be a Democratic elector, but when the time came to cast his ballot, he voted for then-Ohio Gov. John Kasich, a Republican, rather than Hillary Clinton, who won the majority of votes in Colorado.

Colorado officials then removed him, discarded his vote and replaced him with an elector who cast her vote as directed.

Most states are required to take an oath to support the winning candidate, and many states have laws stating that so-called “faithless electors” will be removed and replaced if they fail to abide by their commitment.

Baca sued, alleging his removal was unconstitutional. According to the Constitution, “electors shall meet in their respective states and vote by ballot for president.”

A federal judge ruled against Baca, but a divided 10th Circuit reversed that ruling.

The majority said the use of the terms “elector, vote and ballot have a common theme,” indicating that “the electors, once appointed, are free to vote as they choose.”

Colorado Secretary of State Jena Griswold said the 10th Circuit’s decision “takes power from Colorado voters and sets a dangerous precedent.”

She then appealed the case to the high court.

The justices will hear the case and another on a separate filing by three Electoral College voters in Washington state, where the courts have ruled the state can regulate the vote of an elector either directly or indirectly.

Electors Peter Bret Chiafalo, Levi Jennet Guerra and Esther Virginia John, were nominated as presidential electors for the Washington Democratic Party in the 2016 election, but when the time came to cast their votes, they voted for Colin Powell, who was not on the ballot.

The three electors were each fined $1,000 for failing to vote for the nominee of their party.

The Washington state Supreme Court upheld the fines, ruling “the Constitution does not limit a state’s authority in adding requirements to presidential electors, indeed, it gives to the states absolute authority in the manner of appointing electors.”

As is their custom, the justices did not explain their rationale for taking the case.

The case is likely to be argued in April and decided by late June.

“We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections,” said Lawrence Lessig, lead counsel for the presidential electors, in a written statement.

“My team and I will get right to work on our briefs, and we look forward to a full and fair hearing,” he added.

In a joint statement electors Bret Chiafalo and Micheal Baca said they are “thrilled the Supreme Court will take up our cases, and we look forward to our historic day in court. The states had no power to penalize us merely for exercising our right to vote.”

Melody Kramer, an attorney for Vinz Koller, a California elector who filed an amicus brief in the Washington case, said, “I’m absolutely thrilled that the United States Supreme Court will be reviewing this issue that is fundamental to our democracy – how we decide who our president will be. “

“How the electoral college functions is a topic rarely discussed and I think the country is long overdue for a good, hard look at how we choose our leaders. Hopefully the Supreme Court’s action today will help foster that discussion, regardless of the eventual outcome of these cases,” Kramer said.

The cases are Chiafalo, Peter B. v. Washington, No. 19-465,  and Colo. Dept. of State v. Baca, Michael, et al., No. 19-518.

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