DENVER – The United States Supreme Court will hear arguments in Colorado’s “faithless electors” case, the court said Friday, after the state in October appealed a federal court ruling that said that presidential electors could back whichever candidate they choose no matter the popular vote of a state.
The Supreme Court released its orders on new cases Friday afternoon and granted one hour of oral arguments for the case, the Colorado Department of State v. Micheal Baca, et al. The case was one of six granted for oral arguments Friday.
Colorado petitioned the nation’s high court to review the ruling in October. In August, the appeals court ruled, in a 2-1 decision, that Colorado’s presidential electors do not have to follow state rules and vote for the presidential candidate who receives the most votes in the state.
Both Secretary of State Jena Griswold and Attorney General Phil Weiser previously called the appeals court’s ruling a “threat” to democracy and states’ rights as they are outlined in the U.S. Constitution.
On Friday, both praised the Supreme Court’s decision to hear the case ahead of the 2020 election, as the state had sought when it appealed in October.
“Having the U.S. Supreme Court resolve this critical question about the foundation of our democracy before the 2020 election will avoid the uncertainty, chaos, and confusion that would arise in the wake of post-election litigation,” Weiser said. “As this case proceeds, I will vigorously defend the people of Colorado before the Court and work hard to ensure that the Electoral College ballots of electors reflect the will of voters in Colorado.”
“Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to voters' choices and state law,” Griswold said. When Americans vote in the Presidential election, we are exercising our most fundamental right – the right to self-governance. We hope the U.S. Supreme Court will protect the rights of states to enforce their laws and defend the rights of Americans to choose the U.S. President.”
Now that the high court has agreed to take up the case, arguments would likely be set for this spring and a decision would be handed down by June.
The case stems from an ordeal during the 2016 election , when three of the state’s nine electors attempted to vote for John Kasich instead of Hillary Clinton, who won the popular vote in Colorado that year.
Micheal Baca , Polly Baca and Robert Nemanich had all threatened to vote for Kasich as part of a “Hamilton electors” movement across the country whose supporters argued the U.S. Constitution did not bind state electors to vote for a certain candidate. They had pushed for the Electoral College to put someone in the White House other than Donald Trump, who eventually won 270 electoral votes on Election Day.
Then-Secretary of State Wayne Williams threatened to remove and replace all three if they decided to do so. But only Micheal Baca carried through with the threat, and he was removed and replaced as an elector on the day Colorado certified its votes.
Polly Baca and Nemanich – after several last-minute court decisions – ended up writing Clinton’s name on the ballot. The three fought the ordeal in court.
In August, the 10th Circuit ruled that the U.S. Constitution contains no language that allows a state to remove an elector or toss out his or her vote.
Weiser and Griswold said in October that since both the state and the electors would like to see the case go to the Supreme Court, and since a Washington Supreme Court decision differs, they said they felt confident that the court would take up their appeal.
The Supreme Court consolidated the Colorado and Washington cases to they can be heard at the same time by the court.
Lawrence Lessig of Equal Citizens, the lead counsel for the electors, said in a statement he and his clients were pleased the court would hear the case.
“We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections,” Lessig said in a statement. “My team and I will get right to work on our briefs, and we look forward to a full and fair hearing.”
Baca and the person involved in the Washington case, Bret Chiafalo, said in a joint statement they were “thrilled” the Supreme Court was taking their cases and that they looked forward to their “historic day in court.”
“The states had no power to penalize us merely for exercising our right to vote,” they said.
If states that have 270 total electoral votes all join the compact, each state would award all of its electoral votes to the winner of the popular vote for president. Griswold supported that measure, saying it upheld the “one person, one vote” principal.
Twenty-eight states have laws that bind electors to vote for whichever candidate wins the popular vote in that state. Griswold and Weiser explained that in other states that do not have such laws, electors generally follow the unspoken rules.
This is a developing news story and will be updated.