What to do about Baca

Here is the letter we sent to the attorneys general of all states plus the District of Columbia:

Dear Attorney General:

 I write on behalf of the Making Every Vote Count Foundation, a nonpartisan organization dedicated to research and civic education on the merits of choosing the president by means of the national popular vote.

This month the United States Court of Appeals for the Tenth Circuit held unconstitutional a Colorado law providing for the removal of presidential electors who fail to vote for the presidential candidate receiving the plurality of votes within the state, Colo. Rev. Stat. § 1-4-304(5).  See Baca v. Colo. Dep’t of State, No. 18-1173, 2019 WL 3938266, at *2 (10th Cir., Aug. 20, 2019).  According to this decision, no state action of any kind – judicial, legislative or executive – can limit in any fashion the decision of an appointed elector to cast a vote for the President and Vice President of his or her choice. 

 The Baca court correctly acknowledged that each state has “the plenary power to appoint its electors.” Id. at 41.  However, the court also held that after the appointment, “the Constitution identifies no further involvement by the states in the selection of the President and Vice President.”  Id. at 48. Therefore, the court concluded that the Constitution does not empower a state to enforce in any way “a state-required pledge to vote for the winners of the state popular election.”  Id.

The Baca reasoning must bar any legal action to enforce an elector’s promise to vote for a certain candidate.  It also may mean that a state cannot bar from the ballot a slate of electors who promise only to exercise their good judgment in voting for president and vice president.

We believe it is imperative that your office consider the implications of Baca in a timely manner, given the relatively short time frame between now and the preparation of ballots for choosing electors for the presidency that commences in January 2021. We believe that as many as 30 states now have laws and regulations that Baca would invalidate, and others should be aware of what steps they now cannot take.

On the other hand, a state may still enact, and when it is effective also enforce, the National Popular Vote Interstate Compact.  The state has plenary authority, whether acting pursuant to legislation or ballot measure amending the constitution or laws of the state, to determine the manner of appointing electors.  To date, 15 states and the District of Columbia, with a total of 196 electors, have enacted the Compact.  It takes effect when enacted in states with electoral votes totaling 270 or more.  When effective, the chief election officer in states that have joined must determine who has won the most votes nationwide.  Based on that determination, the state will appoint the slate of electors nominated by the party whose presidential nominee has won the national popular vote.  The Baca decision does nothing to disturb this procedure.

A state adhering to the Compact may permit electors to aver that they, as a matter of conscience, favor voting for the winner of the national popular vote for president. They may state also that, if appointed, they will act in accordance with their conscience and vote for the presidential candidate who receives the most votes nationwide. The Baca reasoning does not preclude such pledges by would-be electors. 

In order to give guidance to those who might wish to be electors, to political parties, to voters, and even to presidential and vice presidential nominees, we urge you each to issue, as soon as practical, a formal opinion stating whether your state will follow the Baca reasoning, and whether you concur with our view that the Compact in any event may be adopted in any state.

We have consulted with our attorneys at the law firm of Covington & Burling LLP regarding these issues.  Should you wish to discuss this matter further, you may contact me directly or reach our attorneys, Gerard Waldron and Matthew Shapanka, at the firm.  Thank you for your consideration.

 Sincerely yours,

 Reed E. Hundt, Chairman & CEO


Fred T. Goldberg, Jr.

Judge Lisa Foster (Ret.)

James K. Glassman

Richard S. Tedlow

Jake Fuentes

Jennifer A. Holmes


cc:Attorneys General of the 50 States and the District of Columbia