10th Circuit Hears Case on Freedom of Presidential Electors

Affirming dismissal would uphold Colorado law requiring electors to follow popular vote

Three presidential electors have sued the Colorado Department of State in an attempt to strike down a state law requiring them to vote for the candidates who win Colorado’s popular vote, and the torch has passed to the Court of Appeals for the 10th Circuit to weigh in. 


A panel heard oral arguments last Thursday in Baca, et al. v. Colorado Department of State.

The group of plaintiffs has asked the court to declare Section 1-4-304(5) of the Colorado Revised Statutes unconstitutional. The law requires presidential electors to vote for the presidential and vice-presidential candidates who won the state’s popular vote. The Department of State has defended against the claim by saying the U.S. Constitution doesn’t bar states from requiring its electors to vote for the candidates who win the popular vote. The department has also said the plaintiffs don’t have standing to bring their case.

Three of Colorado’s presidential electors, Micheal Baca, Polly Baca and Robert Nemanich, brought the claim based on the U.S. Constitution’s Article II and the 12th Amendment. On December 19, 2016, the day the Electoral College voted for the president and vice president, the plaintiffs took an oath to cast their ballots for the candidates who won the popular vote in Colorado. 

According to the complaint, then-Secretary of State Wayne Williams said anyone who violated the oath may be charged with felony perjury. 

Nemanich and Polly Baca voted for Clinton and Kaine, but said they felt pressured into voting against their judgment. Micheal Baca instead wrote in John Kasich for his presidential vote. In response, Williams removed him from office, did not count his vote, referred him for a criminal investigation and put a substitute elector in his place.

According to the complaint, the 12th Amendment prohibits an elector from voting for a presidential and vice-presidential candidate from the elector’s state. But beyond that, the complaint says the Constitution doesn’t implicitly or directly allow states to restrict electors’ freedom to vote according to their judgment. 

Polly Baca and Nemanich previously sued 13 days before the 2016 Electoral College vote asking for a declaration that 1-4-304(5) is unconstitutional. A hearing was denied for an injunction against enforcing the law.

Judge Wiley Daniel dismissed the claims, ruling the plaintiffs did not have standing to bring them and that they did not state a claim relief could be granted on.

Neither arguing attorney at Thursday’s session at the 10th Circuit escaped grilling from the panel, consisting of Judges Carolyn McHugh, Mary Beck Briscoe and Jerome Holmes.

The judges zeroed in on Assistant Solicitor General Grant Sullivan’s argument for the Department of State that states have broad power to compel electors to vote a certain way, with Briscoe seeming to shake her head at one point. Sullivan argued Article II of the U.S. Constitution gives states that authority. 

McHugh asked Sullivan if states have power to control their electors, can a state bar electors from voting for a presidential candidate who, say, refuses to release his or her tax returns? 

Sullivan said he didn’t think that type of qualification would be appropriate, but the judges didn’t seem convinced he knew where the line should be between what’s an acceptable restriction on who electors can vote for and what isn’t.

“There’s only some qualifications that are permitted, but others are not. I don’t know where we draw the line,” Briscoe said.

The judges also came after Sullivan’s argument the plaintiffs did not have standing to bring their claims. 

The question turns on whether Micheal Baca suffered a personal “injury” as a result of the sanctions because of his vote, rather than only harm in his capacity as a state official. Sullivan said the sanctions are only an “injury” to the official status of an elector.

“[Micheal Baca] is saying, you removed me from my job as a presidential elector, and I had a right to finish my job,” McHugh said.

Plaintiffs’ attorney Jason Harrow argued states don’t have constitutional power to compel electors to cast ballots a certain way. And when they vote for the president and vice president, he said, they are carrying out a constitutional function. 

“This court has the ability at long last to hold up that the Constitution means what it says and says what it means,” Harrow said. 

But the judges didn’t hesitate to put his assertions under a microscope. Holmes in particular seemed skeptical of Harrow’s claim that the 12th Amendment’s limited scope in directing presidential electors means they don’t hand that authority to states.

“You’re placing a lot on silence,” Holmes told him. “Just because it doesn’t say something doesn’t mean you can’t do it.” Harrow tried to analogize the freedom of electors to that of jury members, who receive instructions on the law but aren’t directed how to vote on a verdict. Briscoe told him she didn’t think was actually a one-to-one comparison.

McHugh later pointed out it’s not technically the states who count their electors’ votes, but Congress. She seemed doubtful of the notion the courts have a place to invervene.

“Is it the place of courts now to come in and tell Congress, you shouldn’t have counted that vote?” 

— Julia Cardi

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