Secretary of State Jena Griswold and Attorney General Phil Weiser announced Wednesday they will appeal the 10th Circuit Court of Appeals’ decision regarding “faithless electors” to the U.S. Supreme Court.
Colorado’s law requires presidential electors to vote for the candidate who wins the general election in the state. The 10th Circuit decided the law is unconstitutional. Griswold said the decision undermines citizens’ faith that presidential electors will represent their interests.
“Voters must have the assurance that presidential electors will represent them at the electoral college,” Griswold said at a news conference Wednesday. “If not, the presidential election may be clouded by confusion and uncertainty.”
In August, the 10th Circuit decided in Baca v. Colorado Department of State that states can’t void the votes of presidential electors who vote for a candidate other than the winner of the general election in the state. The state removed elector Micheal Baca and voided his vote after he cast his vote for John Kasich instead of Hillary Clinton in the 2016 election. Then-Secretary of State Wayne Williams warned electors they could be charged with perjury if they did not cast their votes according to state law. Baca was ultimately not prosecuted.
The petition to the Supreme Court comes on the heels of one filed earlier this month to appeal a case decided by Washington’s Supreme Court. In Chiafalo et al v. State of Washington, three electors voted for Colin Powell for president. Unlike in Colorado, their votes were counted. The Washington secretary of state fined the three electors $1,000 each. An administrative law judge and the Thurston County Superior Court upheld the fines, and the Washington Supreme Court ultimately affirmed the law. The petition to the Supreme Court in that case has asked the Supreme Court to side with the 10th Circuit and strike down Washington’s law.
Weiser said he believes the split between the highest courts in their respective jurisdictions makes the case ripe for the Supreme Court, even if this case will mean a quick timeline to resolve before the 2020 election.
“It is those issues that tend to be taken up by the U.S. Supreme Court, because now the only one who can resolve this split of authority is the Supreme Court.” Weiser said he’s confident the court will agree to hear the case and added he might expect oral arguments to take place sometime during the winter or spring.
The 10th Circuit’s analysis saw Colorado’s case as different from the Washington case because of the difference between the penalties each state imposed on the electors — removing electors, and the additional possibility of criminal charges, versus simply fining them. But Griswold disagreed that the cases are materially different.
“What’s really at stake is can a state enforce state law? That question is the same for the Washington and the Colorado case.”
Lawrence Lessig, who submitted the petition for Washington’s case, also disagreed with the 10th Circuit’s characterization, albeit for different reasons. He believes electors should have freedom to vote how they choose. He wrote that any penalties used to chill electors’ autonomy are unconstitutional. “The particular enforcement mechanism — a fine in Washington and elector removal in Colorado — is constitutionally irrelevant. The question in both cases is state power, and each case renders state power differently,” Lessig wrote in the petition. He added electors aren’t free to perform their federal function if they are subject to a fine.
Although Griswold and Weiser would prefer the Supreme Court overturn the 10th Circuit and uphold Colorado’s law, Griswold said the need to avoid last-minute litigation over faithless electors in the heat of the 2020 general election is the most pressing issue. Asked if the issue of “faithless electors” has partisan overtones, Griswold mentioned her office inherited the lawsuit from former Secretary of State Wayne Williams, whom she said also favors appeal to the Supreme Court. “This really isn’t a partisan issue. This is an American constitutional democracy issue.”
—Julia Cardi