Invitation to Extreme Unpredictability: Summary of Baca v. Colorado Dep’t of State (10th Cir. 2019)

The United States Court of Appeals for the Tenth Circuit just reached a decision that expands the anti-democratic nature of the Electoral College into a new realm of unpredictability.

If this decision becomes the law of the land, then electors chosen by popular vote in a state, or by a national popular vote if that reform goes into effect, can ignore the voters and pick the president and vice president of their choice. They do not even have to choose between the candidates nominated by the two parties. An elector can pick anybody he or she likes.

The court felt that the framers of the Constitution intended to give electors this unfettered power. In the current century, this reading of original intent leads to many startling possible scenarios, including the use of unlimited funds and unthinkably powerful advertising techniques to persuade any and all of 538 electors that someone not chosen by the people of any state, much less the whole country, should be president.  

Here follows a summary of the decision:

 Plaintiff Michael Baca was a presidential elector appointed in Colorado, which, by statute, required its electors to vote for the winner of the popular vote in that state. Colo. Rev. Stat. § 1-4-304(5).  Even though a majority of Coloradans voted for Clinton, Mr. Baca attempted to cast his vote for John Kasich on the date that the electors met to cast their votes. The Colorado Secretary of State removed Baca as an elector, and replaced him with a substitute elector who voted for Clinton.

Baca sued under 42 U.S.C. § 1983 for an alleged deprivation of his constitutional rights provided by Article II and the Twelfth Amendment. The Tenth Circuit found that Baca had standing to challenge Colorado’s statute. The court further found that the “state’s removal of Mr. Baca and nullification of his vote were unconstitutional.”  Baca, at 2.

The court framed the question as “whether the states may constitutionally remove a presidential elector during voting and nullify his vote based on the elector’s failure to comply with state law dictating the candidate for whom the elector must vote.” Id. at 63. The court found that although the Supreme Court has not ruled on the question directly, it has stated in dicta, concurrences, and dissent, that the original intent of the Constitution “recognized elector independence.” Id.  at 66.

Colorado argued that “the power to bind or remove electors is properly reserved to the States under the Tenth Amendment.” Id. at 76. However, the court rejected the argument that the power to bind electors was “reserved” to the states under the Tenth Amendment “because no such power was held by the states before adoption of the federal Constitution.” Id. at 77.  Accordingly, “The Tenth Amendment thus can provide no basis for removing electors or canceling their votes . . . .” Id. at 78. Because the Tenth Amendment did not reserve the power to nullify the vote of a presidential elector, the court framed the question as “whether the Constitution expressly permits such acts.”  Id. at 78.

The state, relying on the president’s power to remove officials, argued that “the power to appoint necessarily encompasses the power to remove.” The court disagreed.  Though the court acknowledged that “the state legislature’s power to select the manner for appointing electors is plenary,” id. at 79 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)), it did not follow that the state also had “the ability to remove electors and cancel already-cast votes after the electors are appointed and begin performing their federal function,” id. The court distinguished presidential appointees, who are subordinate officers in the electoral branch and thus under the president’s control, from electors, who perform a separate federal function from the states that appoint them 

The court found that “Based on a close reading of the text of the Twelfth Amendment, we agree that the Constitution provides no express role for the states after appointment of its presidential electors.”  Id. at 84. The court noted that “From the moment the electors are appointed, the election process proceeds according to detailed instructions set forth in the Constitution itself,” and “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.” Id. at 86.  The court concluded that “while the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote.” Id.  at 86-87.  In other words, because the Constitution does not give the states an explicit right to remove electors or control their votes, no such right exists.

The court looked the words “elector,” “vote,” and “ballot,” and found that these terms, as they would have been understood at the time of the adoption of Article II and the Twelfth Amendment, established that no role for the state existed beyond the appointment of electors.  Id. at 88. The court found that contemporaneous dictionaries reflect that “the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion.” Id. at 90.  The court also looked at the term “elector” as it is used elsewhere in the Constitution, and found that “electors” in Article I and the Seventeenth Amendment “exercise unfettered discretion in casting their vote at the ballot box.”  Id. at 92. The court also found that the Federalist Papers were “conclusion that the presidential electors were to vote according to their best judgment and discernment.” Id. at 105-09.

The court noted that there had been a longstanding practice of requiring electors to pledge to vote for a certain candidate. However, the court found that the fact that Congress had previously counted every “anomalous” vote that had ever previously cast, pledges notwithstanding “weighs against a conclusion that historical practices allow states to enforce elector pledges by removing faithless electors from office and nullifying their votes.” Id. at 101.

Nor did the fact that most states do not even list their electors on the ballots change the court’s conclusion that interference with an elector was unconstitutional.  Id. at 101-105.  The court noted that the Supreme Court had found that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.” Id. at 104 (quoting Bush, 531 U.S. at 104). Accordingly, even though all states now allow the citizens to vote for presidential electors the state “can take back the power to appoint electors.” Id. (quoting Bush, 531 U.S. at 104).  The court found that, similarly, “Although most electors honor their pledges to vote for the winner of the popular election, that policy has not forfeited the power of electors generally to exercise discretion in voting for President and Vice President.”  Id.

In conclusion, the court found that the Secretary of state “impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector” by “removing Mr. Baca and nullifying his vote for failing to comply 114 with the vote binding provision in § 1-4-304(5). Mr. Baca has therefore stated a claim for relief on the merits, entitling him to nominal damages.”