Colorado asks U.S. Supreme Court to stop so-called ‘faithless electors’

Colorado electors can currently vote for whomever they choose without consequence, which could alter the 2020 election.

Voters head into a voting center at the Blair-Caldwell African American Research Library in Denver on Election Day in 2018. (Photo by Alex Burness)

Colorado is asking the U.S. Supreme Court to overturn a lower federal court ruling that allows members of its Electoral College to vote for whomever they want in presidential elections without consequence. 

If electors in Colorado can vote for whomever they choose, it could help swing a close race in 2020. In 2000, George W. Bush beat Al Gore by just five electoral votes. Most states require electors to vote for the candidate who wins that state’s popular vote. And until the lower court ruling, that’s what Colorado mandated as well. 

Colorado Attorney General Phil Weiser and Secretary of State Jena Griswold want to keep the former system intact, binding electors to support the candidate Colorado voters choose. 

“Voters are expecting their votes to be delivered,” Weiser said at a news conference in Denver Wednesday. “What this case represents is a threat to the shared understanding of how our constitutional democracy works.”

Related: Ask the Indy: Is the Electoral College a ‘relic of slavery?’ Is there any polling on the National Popular Vote in Colorado?

The lower-court ruling comes out of Colorado’s 2016 election in which Hillary Clinton won the popular vote by 5%. By state law, Colorado’s nine electors were bound to cast their ballots for Clinton. But one, a so-called “faithless elector,” tried to vote for Ohio Gov. John Kasich, a strategy intended to try to foment a movement that would deny Donald Trump the presidency. 

Former Colorado Secretary of State Wayne Williams thwarted the effort by replacing elector Micheal Baca with another who voted for Clinton. The tumultuous night made history, representing the first time an elector had voted for a candidate who did not win the popular vote.  

Related: The Electoral College plan to stop Trump explained

The state did not press charges against Baca for violating a state law requiring electors to vote for the candidate who wins the popular vote. But the so-called Hamilton Electors — Baca, Polly Baca (unrelated to Micheal) and Robert Nemanich — later sued the state for violating what they said were their rights to vote their consciences. An initial court ruling sided with the state. They appealed. In August, the 10th U.S. Circuit Court of Appeals in Denver sided with the Hamilton electors. 

“Electors, once appointed, are free to vote as they choose,” Judge Carolyn B. McHugh wrote for the majority. The three-judge panel was divided. 

The ruling has broader implications for the state’s efforts to elect presidents based on a national popular vote. Gov. Jared Polis signed the National Popular Vote Interstate Compact into law in March. 

The compact would require Colorado’s electors to vote for the candidate who wins the national popular vote, rather than the statewide popular vote. It would only take effect if enough states join that 270 electoral votes are in play. According to the National Conference of State Legislatures, 16 states and the District of Columbia have joined the compact. In order for the compact to take effect, 74 additional electoral votes are needed. 

The point of the law is to do away with a system of presidential elections in which the winner of the popular vote fails to win the Electoral College and, therefore, the presidency. Both Donald Trump and George Bush fall into that category. Switching to the national popular vote is controversial with critics arguing that it cedes too much power to more densely populated, coastal — and often blue — states.

For the Supreme Court to take up the state’s appeal, four of the nine justices on the U.S. Supreme Court will have to agree to hear the case.

Baca, the elector who went rogue on 2016, said of the petition to the court: “While I disagree that the State of Colorado can control my vote as a presidential elector, I enthusiastically agree that the U.S. Supreme Court should step in and resolve the issue of elector freedom before the 2020 election. That would benefit Coloradans and the whole country.”

14 COMMENTS

  1. Your article contains an error. Trump counts as the only time in modern history that a president lost the popular vote, but was elected by a majority of Electors. W doesn’t count due to the Supreme Court’s involvement in the 2000 election.

      • I don’t know how old you are Max, but I’d think that it’s safe to say anything before the invention of flight, the Model T and those fancy electric candles doesn’t qualify as the “modern era”.

        Thus it’s just Comrade Trump, and he alone in modern times, that sits in the WH in the compromised manner in which he does. The election in 2000 was compromised in a different way.

        That’s why we’re having this conversation now…although the motivation borne from the overwhelming urge to avoid another Harrison fiasco was just about to boil over when Trump and W came along and “earned” their asterisks.

        • I consider the entire history of the current system dating back to its origins in order to gain a better understanding. Focusing solely on Trump and Dubya is an arbitrary choice you make to promote your own partisan views.

          That’s fine — but you can expect to be called out for it.

          • Max, I still think you can’t say that Harrison was “elected” in the modern era, but we can agree to disagree. I imagine you’re a lot older than I am and may have a different perspective on what “modern” means.

            That said, Trump’s asterisk is the first of its kind since the 1800’s…which is why folks are upset, no? Having a president* without the consent of the majority seems like a bug not a feature.

            Time for the software update, in the parlance of our times.

  2. This has got to be a F***ING JOKE!

    Faithless electors? The Dems in control of the Colorado legislature approved our state’s participation in the National Popular Vote Interstate Compact, which disenfranchises voters here if they don’t agree with the popular vote nationwide.

    AG Phil Weiser is the biggest phony in state politics, which is pretty amazing given that Jared Polis is governor.

    • Max, I hate to be the one to tell this to you, but the NPV is mathematically less disenfranchising than the EC. Seems more in tune with our American values to update our systems in order to reduce voter disenfranchisement, rather than fight for an outdated, mathematically inferior status quo system, no?

      That is unless retaining power is more important than voting validity…cough….gerrymandering…cough.

      • America is a constitutional l republic, NOT a pure democracy, and the Electoral College serves the vital purpose of protecting less-populous states from the tyranny of the more-populous such as California and New York.

        If Hillary had bothered to show up and campaign in front of the “deplorables” in a few swing states in 2016, she’d be in the white House today.

        In any case, it seems that the NPVIC has run out of steam, and will never gain the approval of enough states to total the 270 electoral vote threshold.

        • So voting validity isn’t as important as preserving a disingenuous representation of political will? Is that what America stands for?

          Here’s a thought….If Republicans can’t get the votes to win fairly….without gerrymandering and the archaic slavery-based EC’s built in finger on the scale…maybe it’s time to drop some of their policy stances with which the majority of Americans don’t agree.

          I could think of a few right off the top of my head.

          • Who controls the U.S. Senate, White House, federal judiciary, and a majority of state governments?

            Here’s a clue: It’s NOT the Dems. So, it’s pretty obvious that the majority of Americans don’t support what passes now for the once-vibrant Democratic Party. I find this unfortunate, because I also support another old-fashioned notion about the two-party system being better than anarchy.

            If things go badly in 2020 and Dems lose the House, they may be finished as a major party. I don’t desire this outcome, not at all.

  3. I don’t think that means what you think it means, Max.

    You see…a majority of governorships or Senate seats or judiciary appointments doesn’t equal a representation of the majority of US voters. Civics 101.

    Look it up…the total number of Democratic votes nationwide in each of those categories outnumber the total votes for Republicans nationwide for the same.

    A governor in Wyoming just doesn’t count for the same vote representation as the governors of New York and California. That’s just a fact.

    It’s been that way for a long time.

    Like I said…I imagine that’s why folks want to update our systems to better represent the majority of Americans…who happen to prefer Democrats as this point. It doesn’t have to always be that way.

    There are several ways the Republicans can change that fact without resorting to the slavery based EC and illegal gerrymandering to misrepresent the will of the people. Don’t get me started on why Republican Senate Obstruction in no way represents American wishes.

    Personally, I encourage Conservatives to drop some of their anti-science, religious-based policy stances first, and their trickle down economics next, because in this enlightened day of data, they’re the least defensible.

    I think we’d all be amazed at how quickly their demographics would change.

    • I’ll type slowly so you can understand, but you have to put aside your prejudice::

      The U.S. is a constitutional republic; NOT a pure democracy subject to mob rule.

      BTW, I’m moderate to conservative, but NOT anti-science (another silly stereotype) and I’m agnostic (although I support the free exercise clause of our First Amendment). My ancestors, Republicans from the birth of the party, fought for the Union and their blood helped to destroy the Democrats’ “peculiar institution” of slavery. Maybe you should read the speeches of Frederick Douglass, and also check the Congressional Record to see which party supported LBJ’s Civil Rights and Voting Rights Acts in the ’60s (without the GOP, both would have failed).

      Citizens in Wyoming have two U.S. Senators, just like citizens in California. That’s how it’s been, and how it will remain.

      Your tiresome rhetoric is unfounded in history or any knowledge of American government. I’m done with restating the obvious to anyone as closed-minded as you. Mostly, you’re BORING to me.

      Have a good day!

      • Max, I hope that being corrected on your views with respect to voter disenfranchisement and more importantly, your erroneous belief that Republicans represent the will of the majority of Americans, will help you gain a more complete perspective.

        You seem like a nice, if not well-informed guy, and I certainly didn’t mean to offend by pointing out some fallacies that are pretty common among Conservatives.

        • Also didn’t mean to imply that you personally are anti-science or a religious zealot. I was simply referring to some of the Republican policy stances that make up their national platform.

          As I mentioned, I think dropping some of those party stances from their platform would attract voters who may not share those indefensible positions.

          My apologies for not making that clearer.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.