A federal judge in Colorado on Tuesday dismissed a case its plaintiffs hope will eventually bring more clarity to how members of the Electoral College should vote in presidential elections.
And a dismissal is actually just what the plaintiffs wanted. They expect an appeal could bring their case before the nation’s highest court.
At issue is a lawsuit by three members of the 2016 class of Colorado’s Electoral College who argued that Colorado GOP Secretary of State Wayne Williams violated their constitutional rights by forcing them to officially cast their national electoral ballots for the Democratic candidate, Hillary Clinton, in the 2016 presidential election.
U.S. District Court Senior Judge Wiley Daniel dismissed the case— and in doing so, helped get the legal question potentially further up the legal chain on an appeal and perhaps, eventually, before the United States Supreme Court, which is what the plaintiffs ultimately want.
The lawsuit goes to the heart of Colorado’s law that requires electors to vote for a candidate who wins the popular vote. Clinton won Colorado’s popular vote by 48.16 to 43.25 percent in 2016.
In a 27-page ruling, Daniel said the lawsuit aims to “strike down Colorado’s elector statute that codifies the historical understanding and longstanding practice of binding electors to the People’s vote, and to sanction a new system that would render the People’s vote merely advisory.”
The case will certainly be appealed, said Lawrence Lessig, a well-known national elections attorney based in Massachusetts who represents Colorado’s electoral college members.
The case comes after the 2016 presidential election put a spotlight on the Electoral College, which helped Republican President Donald Trump win the presidential election despite losing the popular vote to Clinton.
In Colorado, four electors wanted to stop Trump from winning the presidency by voting instead for Republican Ohio Gov. John Kasich with the hope that other Republicans would opt for Kasich over Trump. This was part of an ultimately unsuccessful movement known as the Hamilton electors.
But when elector Micheal Baca tried to cast his vote for Kasich, Secretary of State Williams replaced him with another elector who voted for Clinton.
This came after Williams reminded all nine Democratic electors that state law requires them to vote for Clinton because she won the popular vote in Colorado.
Three of these former electors took issue with this mandate; Bob Nemanich, Polly Baca and Micheal Baca (no relation to Polly) filed a lawsuit in August last year arguing they should be able to vote however they wish.
Lessig, a Harvard Law professor who briefly ran for president in 2016 on a campaign finance reform platform, said the U.S. Constitution allows electors to vote how they please. He said state laws cannot interfere with this, just as state laws don’t require citizens to vote for a certain party in congressional or state elections.
“Imagine if the state said every elector had to vote for a Democrat,” Lessig told The Colorado Independent. “Being an elector is to have the power to make a choice.”
Williams says he was following state law, and also followed instructions from a state judge throughout the process when he told electors to vote for Clinton.
“According to the binding court decisions faithless electors can be removed, which preserves the votes of the nearly 3 million Coloradans who cast their ballots in the November election,” Williams said in a statement after the suit was filed last year.
Laws in 29 states say electors must cast votes for whoever won the state. A similar challenge to these laws is pending in Washington State.
Lessig said the hope is that the U.S. Supreme Court will take up the case before the 2020 election. He is not arguing that the electoral college should be scrapped altogether. But he does think that its role in elections should be more clear.
“We need to clarify this,” he said. “There are solutions if people think this is a problem. But we are at the first stage of trying to figure out if there is a problem or not.”
Micheal Baca said he is thankful for the ruling. “We are one step closer to having our claims addressed at a higher court,” he said.