Baca v. Hickenlooper

Baca v. Hickenlooper
United States Court of Appeals for the Tenth Circuit
Full case name Polly Baca, and Robert Nemanich v.
John Hickenlooper
Judge sitting Wiley Y. Daniel
Nina Y. Wang (magistrate)
Plaintiff(s) Polly Baca
Robert Nemanich
Defendant(s) John Hickenlooper

Baca v. Hickenlooper, No. 16-1482 (2016), is a case from the United States Court of Appeals for the Tenth Circuit on the constitutionality of laws punishing a faithless elector in the United States Electoral College.

The case arose from two Colorado Presidential Electors who wanted to vote for a candidate other than the candidate they were pledged to. The case was first filed on December 6, 2016.[1] On December 12, 2016, District Judge Wiley Daniel denied the indicative petition calling the case a "political stunt."[2]

The elector's appeal of the decision was denied on December 16, with the court stating the injunction "would undermine the electoral process and unduly prejudice the American people by prohibiting a successful transition of power.” The court did not rule on the state's authority to remove an elector after voting.

As of April 2017, the case is still under investigation by the Colorado Attorney General.[3]

As of October 2017, Colorado has waived immunity in the suit.[4]

Background

Faithless electors

In the United States Electoral College, faithless electors are those who either cast electoral votes for someone other than the candidate of the party that they pledged to vote for or who abstain. Twenty-nine states plus the District of Columbia have passed laws to punish faithless electors, although none have ever been enforced. In 1952, the constitutionality of state pledge laws was brought before the Supreme Court in Ray v. Blair, 343 U.S. 214 (1952). The Court ruled in favor of state laws requiring electors to pledge to vote for the winning candidate in order to be certified as electors, as well as removing electors who refuse to pledge. The court did not rule on the enforceability of those pledges. In his dissent in Ray v. Blair, Justice Robert Jackson wrote: "no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices."

While many laws only punish a faithless elector after the fact, states like Michigan also specify a faithless elector's vote be voided.[5]

Colorado law

Under Colorado law's, each presidential elector must vote for the presidential and vice-presidential candidates who received the highest number of votes in Colorado’s general election.[6] Colorado's Republican Secretary of State Wayne Williams stated that he would replace electors who failed to vote for Hillary Clinton.[1]

Case history

On November 8, 2016, while Donald Trump was declared winner of the 2016 presidential election his opponent Hillary Clinton received the most votes in Colorado, a state worth 9 electoral votes.[7] The case is part of a larger campaign by members of the Electoral College to convince other members to "vote their conscience for the good of America" in accordance with Alexander Hamilton's Federalist Paper No. 68.[8][9][10]

The named plaintiff in the case is former Democratic state senator Polly Baca of Denver, who had indicated she would cast her vote for an alternative Republican candidate.[11]

The named defendant is Colorado Democratic Governor John Hickenlooper.

Aftermath

Vinz Keller, a California presidential elector, filed a similar lawsuit to overturn California's law that requires presidential electors to vote in the electoral college for the nominee of their party. The pending case is Koller v. Brown, No. 5:16cv-0769 (2016).[12] On December 19, 2016, Polly Baca voted faithfully for Clinton and Kaine. The other party to the suit, Bob Nemanich, also voted for the ticket, saying that the threat of prosecution weighed in his decision and that he voted against his will.[13] Their votes came after fellow elector Michael Baca, no relation to Polly, had his vote for John Kasich invalidated and was expelled from the election; the secretary of state replaced him with Celeste Landry, who cast her vote for Clinton.[14] A fourth Colorado elector who had expressed plans in early December to vote faithlessly, also voted for Clinton and Kaine.

Four faithless electors from Washington were each fined $1,000 for breaking their pledge,[15] but as of March 2017 they are appealing the fine.[16]

See also

References

  1. 1 2 "Presidential electors in Colorado file suit to block Donald Trump". Denverpost.com.
  2. ↑ "Judge rejects injunction request in Colorado elector suit seeking to block Donald Trump". Denverpost.com.
  3. ↑ "Colorado secretary of state on 2016 Electoral College vote: 'They're investigating' - The Colorado Independent". Coloradoindependent.com. 25 April 2017. Retrieved 28 August 2018.
  4. ↑ "Colorado Sec. of State makes a deal with electoral college members suing him: 'We just want an answer to the constitutional question'". Coloradoindependent.com. 25 October 2017. Retrieved 28 August 2018.
  5. ↑ "Michigan Election Law Section 168.47". Legislature.mi.gov. Retrieved August 26, 2010.
  6. ↑ "Electoral College FAQs". Sos.state.co.us.
  7. ↑ Williams, Wayne W. (November 16, 2016). "Colorado Election Results". Colorado Secretary of State. Retrieved November 16, 2016.
  8. ↑ O'Donnell, Lilly. "Meet the 'Hamilton Electors' Campaigning for an Electoral College Revolt". The Atlantic. Retrieved November 23, 2016.
  9. ↑ "Hamilton Electors | Facebook". Facebook.com. Retrieved November 23, 2016.
  10. ↑ "Hamilton Electors". Hamilton Electors. Archived from the original on November 22, 2016. Retrieved November 23, 2016.
  11. ↑ Rehkopf, Bill (December 1, 2016). "This presidential elector will vote her conscience in Electoral College". The Hill. Retrieved December 7, 2016.
  12. ↑ https://scholar.google.com/scholar_case?case=7111357014846402984&q=Koller+v.+Brown&hl=en&as_sdt=2006&as_vis=1
  13. ↑ Meltzer, Erica; Aiello, Chloe (December 19, 2016). "Colorado's electoral votes: Eight for Clinton initially, one not counted — and then replaced (blog)". Denverite. Retrieved December 29, 2016. Most recently, Denver District Court Judge Elizabeth Starrs ruled that Colorado Secretary of State Wayne Williams had mere minutes to go through a legal process to change the electors’ oath of office to bind them explicitly to vote for the person who won the most votes, rather than to 'faithfully perform their duties.' Williams announced that rule change at 11:48 a.m.
  14. ↑ "One Colorado elector fails to vote for Clinton, is replaced". Krdo.com. 20 December 2016.
  15. ↑ La Corte, Rachel (December 23, 2016). "Four state electors to be fined $1,000 for vote". Kitsap Sun. Retrieved December 25, 2016.
  16. ↑ Anderson, Rick. "Washington state's 'faithless' electors are paying the price for defying voters". Latimes.com. Retrieved 28 August 2018.
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