Colorado Department of State v. Baca

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 allotted 9 electoral votes.[6]

Two Democratic electors in the 2016 election sought an injunction against the state's law after the results of the general election were tallied in early November 2016 but before the electoral college vote on December 19, 2016. The named plaintiff in the case was former Democratic state senator Polly Baca of Denver, who had indicated she would cast her vote for an alternative Republican candidate.[7] The named defendant was John Hickenlooper, then the Governor of Colorado. They challenged Colorado's law on the basis of their constitutional rights under the Twelfth and Fourteenth Amendments, as well as the Supreme Court's prior ruling in Ray v. Blair that left open if states can compel electors to vote as specified with penalties.[8] The electors were part of a grassroots effort to convince other electors to "vote their conscience for the good of America" in accordance with Alexander Hamilton's Federalist Paper No. 68 and vote for an alternative Republican candidate, even if this were to violate their pledges, to deny Trump a majority in the electoral college and trigger a contingent election in the United States House of Representatives.[9][10] On December 12, 2016, District Judge Wiley Daniel of the United States District Court for the District of Colorado denied the indicative petition calling the case a "political stunt."[11]

The elector's appeal of the decision to the United States Court of Appeals for the Tenth Circuit 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, but declared in a footnote that any attempt to remove electors "after voting has begun" would be "unlikely in light of the text of the Twelfth Amendment."[12] Subsequently, Wayne Williams, then the Secretary of State of Colorado, stated that he would replace electors who failed to vote for Hillary Clinton.[8]

While both electors ultimately voted for Clinton during the electoral college vote on December 19, a different elector, Micheal Baca (no relation to Polly), attempted to vote for John Kasich. Before voting for vice president, Williams declared his vote invalid under state law and replaced him with an alternate elector who voted for Clinton and Tim Kaine.[13][14]

Micheal Baca and the two other electors then filed suit in a new case, Nemanich v. Williams, claiming "The Constitution does not expressly or implicitly give the states any power to restrict Electors’ freedom beyond the 12th Amendment's single limitation."[1] Later, the respondent was changed to the Colorado Department of State. On April 10, 2018, Judge Daniel granted the motion to dismiss the case on the part of Colorado. The electors appealed to the Tenth Circuit, with oral arguments held in January 2019. Both sides filed a joint motion seeking the court to render a decision on the merits of the case, with Colorado claiming to waive immunity from suit.[15] The court ruled in favor of the electors in a 2-1 vote in August 2019, agreeing that Baca's removal as an elector violated the Twelfth Amendment. The majority opinion, written by Circuit Judge Carolyn Baldwin McHugh and joined by Circuit Judge Jerome Holmes, stated that "The text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice."[16][17] Circuit Judge Mary Beck Briscoe did not take a position on the merits of the case but dissented on mootness and standing grounds.[16] The court did rule that only Micheal Baca had standing and officially remanded the case back to the district court. The ruling immediately invalidated faithless elector laws in states within the 10th Circuit, specifically in New Mexico, Oklahoma, and Wyoming.

Instead of seeking an en banc review at the Tenth Circuit,[18] Colorado instead filed a petition for writ of certiorari to the Supreme Court on October 16, 2019.[19][20] Colorado's petition identified the circuit split between the Tenth's and the Washington Supreme Court from the prior petition of Chiafalo v. Washington (No. 19-465) dealing with a similar matter on faithless electors from Washington state, and seeking the Supreme Court's involvement to resolve the split. Colorado's petition urged for an urgent resolution to the case, as the matter may impact the 2020 elections.[21]

On January 17, 2020, the Supreme Court agreed to hear the case during the 2019–2020 term, consolidated with Chiafalo v. Washington.[22] However, on March 10, Justice Sonia Sotomayor announced that she would recuse herself from the Colorado case, citing her prior friendship with the respondent Polly Baca. As a separate result, the Supreme Court reversed the consolidation of the two cases in a decision that Sotomayor had no part in due to her connection to Baca.[23] Oral arguments in both cases were heard on May 13, 2020, which were held via teleconference due to the COVID-19 pandemic.[24] Observers to the arguments for both cases believed the justices were concerned with the chaos that allowing faithless electors to vote how they wanted, or to be influenced by bribes, would have on the election process. Lawrence Lessig, representing several of the faithless electors, argued that the Constitution does not give the authority to states to restrict how electors can vote, but several justices stated that the Constitution does not block states from such restrictions.[25]

The Supreme Court's decision is highly anticipated with respect to the upcoming 2020 United States presidential election. Though faithless electors have never changed the outcome of an election, some argue the possibility that faithless votes could affect the outcome in a close election increased in light of the events of 2016.[26]

The electors in both cases are represented by Lawrence Lessig, who founded the group Equal Citizens that is pursuing litigation to seek democratic election reforms and raise awareness. Lessig argued that both cases offered the Supreme Court the opportunity to rule on the matter of faithless elector laws outside the realm of a contested election where their ruling would have a direct impact on the outcome, as in Bush v. Gore. By clarifying how the Electoral College actually functions, Lessig and Equal Citizens hope to spur Electoral College reform via either a constitutional amendment or the National Popular Vote Interstate Compact.[27] In the latter case, electors from states in the compact combined with electors pledged to the popular vote winner in non-compact states would conceivably create a buffer in electoral votes such that it would take an unprecedented number of faithless electors to threaten the electoral college majority of the popular vote winner.