States Can’t Remove ‘Faithless Electors,’ 10th Circuit Rules

Split decision in Baca v. Colorado State Department raises specter of Supreme Court review

Can a state remove presidential electors and discard their votes when they fail to vote for the candidate dictated by state law? The 10th Circuit Court of Appeals on Tuesday ruled it cannot, laying down an opinion that could reverberate in future elections if not draw an eventual decision from the U.S. Supreme Court.

The 10th Circuit decided 2-1 that the Colorado Department of State violated Micheal Baca’s constitutional rights when it removed him as an elector for refusing to cast his ballot for Democratic nominee Hillary Clinton in 2016. The majority held that not only did Baca have standing to sue over his removal — reversing the district court — but also that his removal along with his inability to cast a vote for vice president violated his 12th Amendment rights.

 “[W]e conclude the states may not interfere with a presidential elector who exercises discretion in casting votes for the President and Vice President of the United States,” according to the majority opinion written by Judge Carolyn McHugh and joined by Judge Jerome Holmes. Judge Mary Beck Briscoe dissented.

The decision concerns Colorado’s so-called “faithless electors” in the 2016 presidential election who intended to cast their electoral votes for Republican John Kasich instead of Hillary Clinton, whom state statute required them to vote for as she’d won Colorado’s popular vote. Micheal Baca was removed as an elector when he cast a vote for Kasich, and Polly Baca (unrelated) and Robert Nemanich claimed they were unlawfully chilled from doing so, according to their lawsuit against the Colorado Department of State.

The 110-page majority opinion found that, of the elector plaintiffs, only Micheal Baca had standing, but the state violated the constitution by removing him and striking his vote. The majority also held that state governments have no role in the presidential election process after they have appointed their electors.

Colorado Secretary of State Jena Griswold issued a statement saying the decision in Baca v. Colorado Department of State “takes power from Colorado voters and sets a dangerous precedent.”

“Our nation stands on the principle of one person, one vote,” Griswold said. “We are reviewing this decision with our attorneys, and will vigorously protect Colorado voters.”

Micheal Baca is suing the State Department for $1 in nominal damages. In her dissent, Briscoe said the case is moot because Section 1983, under which plaintiffs sue for constitutional violations, bars Baca from seeking damages from the State Department, as the state “is not a person.” That dollar wouldn’t be changing hands, she argued.

A Key Reversal

The case originates from a plan among some electors across different states to vote for Kasich as way to deny Donald Trump electoral votes. The Colorado Secretary of State at the time, Wayne Williams, had warned electors that if they didn’t cast their ballot for the popular vote victor according to state law, they would likely be replaced and face perjury charges.

When the Colorado electors met to vote on Dec. 19, 2016, Micheal Baca still wrote in Kasich on his ballot. Williams removed him, tossed his vote, and replaced him with another elector who then cast a vote for Clinton. Polly Baca and Nemanich voted for Clinton and her running mate Tim Kaine but later claimed they felt pressured to do so.

Polly Baca and Nemanich tried unsuccessfully to enjoin the state from enforcing the statute that required they vote for Clinton. But in a separate lawsuit, Colorado district court sided with Williams in saying an elector’s refusal to cast votes for the popular vote winner is a “refusal to act” under state law that causes a vacancy that may be immediately filled.

After the three electors sued the State Department, the late District Judge Wiley Daniel ruled in favor of the state. He found that the electors not only lacked standing to sue under the political subdivision doctrine but also that the U.S. Constitution doesn’t bar states from requiring electors to vote for the state’s popular vote victor.

The 10th Circuit, however, found political subdivision standing inapplicable because the electors didn’t represent municipalities or subdivisions.

The majority determined that if the electors had standing to sue, it would be to seek relief from harm in their personal, and not official, capacity since they were no longer serving in their official roles. The personal harm the electors alleged was that Williams cancelled Micheal Baca’s presidential vote and barred his vice-presidential vote, and that the two other electors were threatened with the same consequences.

According to the majority, the refusal to count Micheal Baca’s votes was an injury-in-fact that gives him Article III standing. But because he was never prosecuted for perjury, he can’t allege an actual injury from the referral, and he also can’t plausibly claim prospective relief from a future harm, according to the majority. Along those same lines, the other two electors didn’t allege actual injury because they were only threatened with having their votes barred. While Polly Baca and Nemanich argued the threats prevented them from exercising their rights to vote for the candidate of their choice, that would only constitute an official harm that the court wouldn’t consider in their case, the majority held.

Even if Micheal Baca had standing to sue the State Department, his case was potentially moot since the department isn’t considered a person under Section 1983, and therefore can be protected from a Section 1983 lawsuit. But the department waived that “personhood” defense, the majority noted, so assuming Baca met other Section 1983 requirements, he could win on his claim and recover his dollar in nominal damages. The majority refused to raise the personhood argument of its own accord where the department didn’t, in contrast to Judge Briscoe.

In her dissent, Briscoe argued that it “makes no difference” that the department waived its sovereign immunity under the Eleventh Amendment. Section 1983 provides no remedy against a state, and parties can’t agree to waive an element of the electors’ claim to “circumvent congressional intent,” she added.

‘Longstanding Practice’ Notwithstanding

Baca argued that Article II and the 12th Amendment give electors the freedom to choose a candidate at their own discretion. Colorado violated that constitutional right by removing him and barring his vote when he defied the vote-binding provision in Colorado Revised Statures Section 1-4-304(5), he claimed.

The court found scant case law regarding how much discretion electors have under the 12th Amendment. In the 1952 decision Ray v. Blair, the U.S. Supreme Court held that a state can require presidential electors take a pledge to vote for a certain candidate. But the court didn’t decide whether the state could actually enforce that pledge, which, among other reasons, was why Ray’s “narrow” holding didn’t apply to Baca’s case, according to the majority.

The parties were at odds on how to frame the question: whether the U.S. Constitution allows states to remove electors when they cast a nonconforming vote, or if it prohibits them from doing so. The 10th Amendment is silent on that question, but that silence doesn’t mean states reserve that right, according to the majority.

“The Tenth Amendment thus can provide no basis for removing electors or canceling their votes in the absence of an express delegation in the Constitution of that power,” according to the majority. The states only have that power if the Constitution expressly delegates it, it continued.

The Constitution gives states no express role in deciding presidential elections after they’ve appointed their electors, according to the majority.

The district court cited the “longstanding practice” of electors pledging to vote for the candidate who wins the state’s popular vote. But the fact that Congress counts anomalous votes — it recognized 13 votes electors cast in 2016 for people who weren’t Clinton or Trump — undercuts the idea that “that historical practices allow states to enforce elector pledges,” the majority held.

DeaLing With ‘Free-Range Electors’

Chris Murray, general counsel for the Colorado Republican Party and a Brownstein Hyatt Farber Schreck shareholder, said Baca “is actually an incredibly narrow ruling” despite it being a bombshell. For all the analysis and importance of the decision, it boils down to the court saying states can’t remove electors or bar their votes in response to their choice of candidate. “This is the one thing you can’t do.”

Murray said states should be worried about whether electors will execute the will of the popular vote as a result of the Baca decision. While Colorado has voted Republican in each presidential election since 2004, “most of the states in the 10th Circuit are Republican, so this a bipartisan problem,” he said.

“I think it’s incumbent on both parties to think creatively on how to maintain the legitimacy of the presidential election process,” Murray said.

The workaround might come from the political parties entering into contracts with prospective electors. 

To be considered as an elector, the prospective elector would promise to cast a vote for whoever the party’s nominee is. Failing to do so could constitute a breach of contract with the party, and not the state, and the legal consequences that come from it. 

If electors can’t be removed or barred because they cast a ballot for someone other than the popular vote winner, it can at least be made “too painful” for them to want to go “free-range,” Murray said.

Murray said if he represented the state, he would petition for en banc review before petitioning for cert. There is still time for the whole 10th Circuit to review it before the 2020 election, and there are many judges in the court who would “seriously consider” the case, he added. 

— Doug Chartier

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