111 K Street NE
Washington, DC 20002
- Toll Free 1.888.564.6273
- Local 202.783.3870
The U.S. Court of Appeals for the Tenth Circuit recently issued a ruling in a case on “faithless electors,” Baca v. Colorado Department of State, that has received some media attention. The case is certainly interesting and the opinion from the court is thoughtful and thorough. The opinion from the court is deserving of some explanation of what it could mean for 2020 and beyond. There has also been speculation of the decision’s impact on the National Popular Vote Interstate Compact, which is also deserving of explanation.
Article II, Section 1 of the Constitution and the Twelfth Amendment both define the process for the election of the president. Electors are chosen to cast ballots by the respective political parties in their state and, of course, the process of choosing these electors varies by state. Although there is much attention paid to the popular vote, voters who cast ballots in a presidential election are voting for a slate of electors who are members of the Electoral College. The electors elect the president and vice president.
Electors meet at a venue selected by their respective state legislatures to cast their ballots, but the date on which the electors meet is prescribed by federal law, in 3 U.S.C. 7, which states, “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.” Electors met on Monday, December 19th to cast their votes for the 2016 presidential election. They will meet on Monday, December 14th to cast their votes for the 2020 presidential election.
Forty-eight states and the District of Columbia have a winner-take-all system. The presidential candidate who wins the most votes in the state wins the electoral votes. Only Maine and Nebraska have deviated from this. Both of those states give two electoral votes for the winner of the popular vote but award the remaining electoral votes based on the popular vote in their congressional districts.
Now, a faithless elector is an individual who is elected or appointed to cast a vote in the Electoral College but doesn’t cast their vote for a presidential candidate or vice-presidential candidate to whom he or she is pledged.
Between 1960 and 2004, there were seven instances of electors voting for someone other than a candidate to whom they were pledged to vote. For example, in 1972, a Virginia elector, Roger MacBride, was pledged to vote for President Richard Nixon and Vice President Spiro Agnew. MacBride, however, voted for the Libertarian Party ticket, presidential nominee John Hospers and vice-presidential nominee Tonie Nathan. (As a side note, Nathan, who passed away in 2014, was the first woman to ever receive an electoral vote.) There were seven faithless electors in the 2016 election.
In 2016, the Colorado Democratic Party appointed Micheal Baca as an elector. He, like other electors, was required to take an oath to swear or affirm that he would vote according to the popular vote of the state. Prior to the meeting of the state’s electors, electors were required to take a second oath, under the threat of perjury, that they would vote in accordance with state law, 1-4-304(5), which states: “Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.”
The Democratic Party nominee, Hillary Clinton, won the popular vote in Colorado and electors were bound to vote for her, but Baca didn’t vote for Clinton. Instead, he cast his ballot for John Kasich. This was part of a strategy Baca and others, who called themselves “Hamilton electors,” developed in an attempt to swing the presidential election to the U.S. House of Representatives in hopes of denying Donald Trump the presidency. After casting his vote for Kasich, Baca was removed as an elector and replaced by someone who would vote in a manner consistent with state law.
In October 2017, Baca joined a lawsuit against the Colorado Department of State, in which he and his co-plaintiffs argued that the state’s statute binding electors to the winner of the popular vote is unconstitutional. The argument presented by Baca was that then-Colorado secretary of state, Wayne Williams, “had no authority to remove an elector once the Elector was seated — either because the statute did not so empower him or because the 12th Amendment would not permit it even if the statute did so empower him.”
In April 2018, the U.S. District Court for the District of Colorado ruled in favor of the Colorado Department of State and dismissed the case. Baca and his co-plaintiffs appealed the case to the Tenth Circuit.
On August 20, a split three-judge panel ruled in favor of Baca, although the panel also ruled that his co-plaintiffs lacked standing because they cast their votes in accordance with state law. The co-plaintiffs planned to be faithless electors but were intimidated by his removal and, instead, voted for Clinton, in accordance with state law. Essentially, the panel determined that although Colorado had the ability to prescribe the process of selecting electors, the state couldn’t remove electors who may vote at their own discretion under Article II and the Twelfth Amendment.
“As the text and structure show, the Twelfth Amendment allows no room for the states to interfere with the electors’ exercise of their federal functions. From the moment the electors are appointed, the election process proceeds according to detailed instructions set forth in the Constitution itself. The Twelfth Amendment directs the electors to ‘name in their [distinct] ballots the person voted for as President...[and] Vice-President,’” wrote Judge Carolyn McHugh. “Nowhere in the Twelfth Amendment is there a grant of power to the state to remove an elector who votes in a manner unacceptable to the state or to strike that vote.”
Judge McHugh explained in detail the views of Alexander Hamilton, who, in Federalist No. 68, wrote about the role of electors. Hamilton explained that process as one of deliberation and, although not explicitly phrased this way, independence. She also cited Federalist No. 64, written by John Jay, who also framed the electors’ responsibilities as one of deliberation and that “their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.”
Another source Judge McHugh mentions in her opinion is the Commentaries on the Constitution of the United States, authored in 1833 by Joseph Story, who served as Chief Justice of the Supreme Court from 1812 to 1845. He, more explicitly than Hamilton or Jay, referred to the “independence of the electors in the Electoral College.” Although he mentioned pledges of electors to cast their votes for a particular candidate, he framed this, as Judge McHugh notes, as a process that is contrary to the framers of the Constitution.
“Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector,” Judge McHugh noted. “Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote binding provision in 1-4-304(5).”
Colorado argued that it had the power under the Tenth Amendment to establish laws governing the electors after they’ve been designated, but Judge McHugh rejected that argument, citing Supreme Court precedent in U.S. Term Limits, Inc. v. Thornton (1995). This case reviewed state-imposed term limits on members of Congress. The majority found that states “could only ‘reserve’ that which existed before.”
The ruling in this case also cited Chief Justice Story, who wrote, “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them...No state can say, that it has reserved, what it never possessed.”
Judge McHugh, who was appointed to the Tenth Circuit by President Barack Obama, was joined in the opinion by Judge Jerome Holmes, who was appointed by President George W. Bush. Judge Mary Beck Briscoe, an appointee of President Bill Clinton, dissented on the ground that the case was moot because Baca is seeking only nominal damages.
To this point in 2019, 15 states and the District of Columbia have joined the National Popular Vote Interstate Compact. These states, which include Colorado, and D.C., represent 196 electoral votes. Essentially, these states have required electors to vote for the candidate who wins the national popular vote once the compact crosses a total of 270 electoral votes, which is the number necessary for a presidential candidate to win.
Some have speculated that Baca may pose challenges for the National Popular Vote Interstate Compact. Unfortunately, the panel’s decision in the case doesn’t appear to hurt the National Popular Vote Interstate Compact. The text of the model legislation for the compact requires the “chief election official of each member state” to calculate the “national popular vote total” for each ticket and, using that total, “designate the presidential slate with the largest national popular vote total as the ‘national popular vote winner.’”
Under this scheme, if a Republican loses Colorado but wins the national popular vote, the Republican electors from the state would serve as members of the Electoral College. Now, under Baca v. Colorado Department of State, the electors are free to vote their conscience after they are designated.
The compact does face significant constitutional challenges, but not necessarily from this case. Article I, Section 10 of the Constitution does allow states to enter into compacts with the consent of Congress, but the National Popular Vote Interstate Compact hasn’t been approved by Congress. The jurisprudence on this is not as clear cut, but the Supreme Court has established ground rules on interstate compacts, such as considering national implications. This would include the obvious impact on the federal government, as well as the impact on states that don’t join the compact.
The Electoral College wasn’t simply thrown together by the Constitutional Convention in 1787; it was a carefully constructed compromise. Sure, the system is imperfect, as the nascent United States discovered in the election of 1800, but the Electoral College has worked as intended and served us well. The National Popular Vote Interstate Compact is a direct attempt to circumvent the Article V processes for amending the Constitution and impose, in a significant way, the will of many states on the rest of the country. James Madison would call this as “faction,” which was the topic of Federalist No. 10. He described faction as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
The processes for amending the Constitution defined in Article V are straightforward. Either Congress must pass a constitutional amendment that is subsequently ratified by three-fourths of the states or two-thirds of the states must apply for a constitutional convention and three-fourths of the states must ratify the proposed amendment(s).
Although the Constitution has been amended 27 times, Congress hasn’t seriously considered a constitutional amendment to change how a president is elected. After all, a proposed amendment to eliminate the Electoral College in favor of a national popular vote would face big hurdles in Congress, as well as most state legislatures. States have passed resolutions for various constitutional amendments -- for example, 27 states have applied for an Article V convention for a balanced budget amendment -- but there has never been such a convention.
The understanding of the Electoral College under Article II and the Twelfth Amendment have been based on a certain understanding of how the process of the election of a president and vice president are supposed to work. Should federal courts get involved, the compact would likely be thrown into the dust bin of history, where it belongs.
As for Baca, Colorado may ask for en banc review of the case by the full Tenth Circuit, directly appeal to the Supreme Court, or let the opinion stand, which would limit its application to the states under the jurisdiction of the Tenth Circuit. Whether the Supreme Court would take the case is obviously up in the air, but if the justices decided to hear it, the eventual decision may have large implications.