In the heat of the 2016 presidential election, Micheal Baca, a member of the Electoral College in Colorado, cast his presidential ballot for Republican Ohio Gov. John Kasich, even though Democrat Hillary Clinton won the state’s popular vote over Donald Trump.
Baca’s decision, and former Secretary of State Wayne Williams’ decision to remove Baca from the Electoral College, has been disputed all the way to the U.S. Supreme Court.
The justices will decide whether Colorado has the constitutional authority to remove electoral voters who refuse to vote for the candidate who won the state’s popular vote.
Baca’s attorney, Jason Harrow, and Colorado Attorney General Phil Weiser presented their arguments to the Supreme Court on Wednesday via teleconference.
Weiser backs states’ authorityWeiser testified that under the Constitution, it is the role of states to determine how to select electoral voters as well as to ensure those electors uphold their commitment to vote for a particular candidate.
“The Constitution is silent in whether or not you can have electors representing the popular vote,” Weiser said. This, he argued, is up to the state legislatures to determine.
The state can also remove and replace electors if they have taken a bribe or don’t show up, Weiser testified.
In a close presidential election, if electoral voters can choose who they want to elect without regard to the results of the state popular vote, there is a tremendous amount of power that falls to a few individuals, who could also be subject to bribes.
“It is the role of the states to oversee confidence in our elective systems,” Weiser argued before the court. “This case is all about state authority, and our founders gave the states this authority.”
There are 32 states that require electors to vote for a pledged candidate, as well as the District of Columbia. But 45 states, as well as the District of Columbia, filed a brief supporting the state of Colorado.
Baca argues electoral voters have freedomA lower court decided the state was right to remove Baca, saying he broke state law. But the 10th Circuit Court of Appeals reversed the decision, saying presidential electors are free agents who can choose whichever candidate they want, raising the question of whether the Colorado law is constitutional.
Harrow on behalf of Baca said the requirements for electoral voters in Colorado are too rigid. There are times when electors “must be allowed to vote at their discretion,” Harrow said.
Electoral voters can pledge to vote for a candidate, but the state “can’t cross that line and enforce them,” Harrow said.
“Our quibble is not with the pledges or party control,” Harrow said. The Constitution gives Baca the freedom to vote for who he wants to – even if that’s a different candidate than chosen by the state’s voters.
Weiser countered that in the absence of an official removal process for electoral voters, like there is for members of Congress, the duty to institute one falls to the states. The attorney general said Harrow and Baca did not propose a solution for how to handle or replace bribed or deceased electoral voters in their argument.
‘Faithless electors’ and the 2020 electionThe 2016 presidential election had the highest number of “faithless electors,” or electoral voters who cast a ballot for a candidate other than who they pledged to vote for, than any other election. Out of 538 electoral voters, 10 voted against their pledges in 2016. Eight of those 10 were Democrats.
John Koza, chairman of the organization National Popular Vote and originator of the National Popular Vote legislation, said it happened in 2016 because “electors were frustrated and knew their votes didn’t matter.”
Trump was already ahead in electoral votes. But in close races like the 2000 presidential race between former President George W. Bush and Democratic nominee Al Gore, electoral voters keep their pledges, Koza said.
“People have lost track of that, as if there is a crisis here,” Koza said in a phone interview with The Durango Herald.
Drew Penrose, an expert in faithless electors, has been working to catalogue every instance of someone voting for someone other than who they were supposed to represent for the organization FairVote.
“Candidates aren’t winning electoral votes, they are winning electoral voters, or human beings with judgment,” Penrose said in a phone interview.
“To be an elector, you have to be picked by the political party,” Penrose said. Normally, it is someone working for a candidate’s campaign.
That is why what Baca did was so rare, and the Supreme Court case so consequential.
“Baca sees himself as an activist on this issue,” Penrose said. Baca is co-founder of a group called the Hamilton Electors, named after the founding father who argued that people should select electors to exercise independent judgment.
“But it’s never worked that way,” Penrose said.
Some fear the presidential election results could fall into the hands of a few electoral voters, but Penrose also thinks that is unlikely, when faithless electors are so rare.
“In 2020, parties will be careful about who they choose,” Penrose said. “There is this fear that electors are just deciding whatever they want, but they are picked by the political parties.”
In an election as charged as the 2020 presidential election, if an electoral voter were to break ranks and vote for another candidate, they would be “turning themselves into pariahs,” Penrose said.
The Supreme Court heard only 10 of the 20 cases it was scheduled to hear, as a result of COVID-19. Colorado Department of State v. Baca was one of them.
Emily Hayes is a graduate student at American University in Washington, D.C., and an intern for The Durango Herald.