This story was originally published on Oct. 16. On Jan. 17, the U.S. Supreme Court decided to hear the case that could determine whether presidential electors have to follow the popular vote.
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.”
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.
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.”