On 20 August 2019, the US Court of Appeals for the 10th Circuit ruled 2-1, in the case of Baca v. Colorado Department of State (No. 1:2017-cv-01937) 2019, that the State of Colorado could not punish or disregard a faithless elector during a presidential election. If upheld by the US Supreme Court, the case might have far-reaching consequences for the 2020 presidential election.
Under Colorado law, the State’s presidential electors are required to cast their votes for the winner of the popular vote in the State. Baca was appointed a Colorado presidential elector for the 2016 election. The election determined that Hillary Clinton won the popular vote in the State and therefore Baca was required to cast his vote accordingly. Nevertheless, he decided to vote for John Kasich and, in response, Colorado’s Secretary of State removed him as an elector and discarded his vote. He was replaced with another elector who cast her vote for Hillary Clinton. After the vote, Baca, along with two other presidential electors who wanted to cast their votes otherwise than in accordance with the popular vote, sued Colorado State Department alleging that removing him as a elector and nullifying his vote violated Article II of the Constitution and the Twelve Amendment. His case was dismissed by a federal District Court on the grounds that Baca lacked standing but he appealed to the US Court of Appeals for the 10th Circuit (pp1-2).
First, the Court dealt with procedural hurdles. It decided that Baca had standing “based on his removal from his role of elector and the cancellation of his vote” (p44). Also, the case was not declared moot becuase Baca “would be entitled to relief in the form of nominal damages” (p56). The Court then framed the crux of the matter in the following terms:
“In determining whether Mr. Baca has stated a plausible claim for relief based on his removal from his role of elector and the nullification of his vote, we must decide whether the Constitution allows states to take such action against presidential electors exercising their federal function” (p76).
This is because presidential electors “exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States” (per Burroughs v. United States, 290 U.S. 534 (1934)) and therefore, unless the Constitution allowed States to remove faithless electors and to disregard their votes, the Colorado State Department “unconstitutionally interfered with [Baca’s] performance of a federal function in his role as presidential elector” under the preemption doctrine of the Supremacy Clause (Article VI, Clause 2) (pp73-75).
At this point, the Court turned to the Tenth Amendment examining if it guaranteed States’ power to regulate the functioning of presidential electors. However, it was stated that the Tenth Amendment “could only ‘reserve’ that which existed before” (per U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)). Because the issue of presidential electors is linked directly with the establishment of the federal government, there were no preexisting States’ rights in this respect and, therefore, the Tenth Amendment did not apply (pp76-77).
Then, the Court analysed whether Article II, as modified by the Twelfth Amendment, authorised States to remove faithless electors and to disregard their votes. However, it held that:
“The plain language of the Constitution provides that, once a vote is cast, it must be included in the certified list sent to the President of the Senate. Nowhere in the Twelfth Amendment is there a grant of power to the state to remove an elector who votes in a manner unacceptable to the state or to strike that vote. Indeed, the express requirement that all votes be listed is inconsistent with such power. And because Article II, Section 1, Clause 2 sets the precise number of electors, the state may not appoint additional electors to cast new votes in favor of the candidate preferred by the state” (p86).
Finally, the Court also considered the argument that the language of the Constitution (terms such as ‘elector,’ ‘vote,’ and ‘ballot’) established that presidential electors were guaranteed the constitutional right to exercise discretion when it came to casting votes for the President and Vice President. In this respect, the Court held that:
“The freedom of choice we ascribe to congressional electors comports with the contemporaneous dictionary definitions of elector discussed above. And because we treat usage of a term consistently throughout the Constitution, Verdugo-Urquidez, 494 U.S. at 265, the use of elector to describe both congressional and presidential electors lends significant support to our conclusion that the text of the Twelfth Amendment does not allow states to remove an elector and strike his vote for failing to honor a pledge to vote for the winner of the popular election. Instead, the Twelfth Amendment provides presidential electors the constitutional right to vote for the candidates of their choice for President and Vice President” (p93).
Consequently, the Court ruled that States could not force presidential electors to vote in any specific manner. On 16 October 2019, the ruling in Baca v. Colorado Department of State (No. 1:2017-cv-01937) 2019 was appealed to the US Supreme Court. If the holding of the US Court of Appeals for the 10th Circuit is maintained, the case will have far-reaching consequences for the 2020 presidential election and beyond as it will essentially prevent the National Popular Vote Interstate Compact from becoming operational.
The National Popular Vote Interstate Compact is an agreement between (so far) 15 States and the District of Columbia to direct their presidential electors to vote for the winner of a nationwide popular vote (as opposed to the winner of the popular vote in each of those States as under Colorado law). Those States are currently worth 196 electoral votes while the Compact requires at least 270 to enter into force (Wiki). The National Popular Vote Interstate Compact is designed to move the United States towards elections based on a popular vote instead of the electoral college system without going through the constitutional amendment process. The Compact became especially popular after the 2016 electoral election when Donald Trump won the presidency under the electoral college system while losing a nationwide popular vote. However, if States are forbidden by the Constitution from interfering with presidential electors’ voting choices, the National Popular Vote Interstate Compact is inevitably unlawful.