Colorado’s “Faithless Elector” Question Heads For SCOTUS

KUNC’s Scott Franz reports:

Colorado is asking the U.S. Supreme Court to take up a case that could have big implications for future presidential elections.

Secretary of State Jena Griswold and Attorney General Phil Weiser are hoping the nation’s highest court will decide that presidential electors must follow state laws that require them to vote for the candidate who wins the most votes in the state.

The legal challenge comes after the 10th Circuit Court of Appeals ruled in August that former Colorado Secretary of State Wayne Williams was wrong to remove a presidential elector who refused to cast a vote for Hillary Clinton, who won the state’s popular vote in 2016.

An appeals court ruling in August which essentially held that members of the Electoral College have the inalienable right to vote for whoever they wish to be President of the United States, regardless of who a majority of the voters in their state supported. Although this ruling is plainly contrary to the spirit of democratic fairness and the individual franchise Americans take for granted, the fact is that it’s arguably fully consistent with the intention of the Founders–who very frankly saw the Electoral College system as a check against unbridled democratic majoritarianism. It’s only in recent years that the College has emerged as an undeniable advantage to Republicans, proving decisive against the majority vote in 2000 and again in 2016.

Secretary of State Jena Griswold and Attorney General Phil Weiser are no fans of the Electoral College, and both supported passage of this year’s National Popular Vote Compact legislation which is now being challenged via a citizen-referred repeal measure on the 2020 ballot. The NPV Compact in turn relies on the ability of states to enforceably bind electors to the results of the nationwide vote in order to work, and until the Electoral College ceases to exist it can only be defensibly do its job if individual voters have confidence that the Electoral College is carrying out their wishes.

Now, the Supreme Court will be obliged to either prop up the Electoral College by pulling the reins on the rights of Electors, or throwing the entire Electoral College system into chaos by destroying even an imaginary linkage between this arcane institution and the rights American voters think they have. Griswold and Weiser are doing what they have to to keep the system working–and we know they agree the solution in the end is for one person to receive one nationally equal vote in presidential elections.

25 Community Comments, Facebook Comments

  1. MADCO says:

     I know I am unintelligible and probably too dumb to understand.

    1. You are saying SCOTUS already said electors can do wahtever the hell they damn well please no matter state law or how the voters of their state voted, right?

    2. So how about we pass a state law that says electors cast their ballot in a public forum, with well regulated state militia citizens prepared to execute any elector who votes other than how we voted?

    They're stealing our vote! my vote!
    I would be scared and just so scared. In self defense, I would be needing blood at the root of the tree of freedom and righteousness.



  2. I'm still fuzzy on just how NPV relies on Electors being bound to the national vote. The Electoral slate representing the winning candidate will represent the state. If the candidate's own Electors rebel, maybe that's not so bad, and it certainly isn't likely to happen often enough to change the outcome.

  3. Genghis says:

    The 10th Circuit's ruling was actually based on Article II and the Twelfth Amendment. I think the panel majority's analysis of the substantive issue was accurate, but SCOTUS might just take the case anyway. Electoral College cases rarely come their way, and this may be the only chance they get to address the substantive issue the Court of Appeals decided for decades and decades. They might also use the case as a vehicle for making some grand statement on the mootness doctrine, using the dissenting Court of Appeals judge's opinion as a jumping-off point.

    Since nothing actually requires states to let citizens vote for POTUS, some brave state legislature needs to highlight the lunacy of the Electoral College by passing a law that all the state's electoral votes go to the candidate who prevails in a round robin jello wrestling tournament. That'd get a debate going. 

    • bullshit! says:

      Very interesting and as always I appreciate you. I had always thought it was a free speech thing, and I guess at some level it would be, but you're saying the 12th Amendment says they can do what they want too?

      If that's right Weiser will lose and its chaos, right? Scary.

      • Voyageur says:

        The faithless elector problem is very minor.  Not once has one changed an outcome.

        • 2Jung2Die says:

          I believe V is correct here, but there could always be a first. There were 7 electoral votes cast in 2016 for literal non-general-election candidates, though Bernie and Kasich ran in the primary phase. 7 electoral votes or something like that could make a difference in a close electoral college election. Once upon a time, maybe electors were envisioned as some sort of illuminati creme de la creme who could in theory make a great decision despite the will of ordinary mortal voters, but I think that time has passed, so I hope the state's right to have statutes regarding electoral votes is upheld.

          • bullshit! says:

            I get it. I guess I'm concerned that a SCOTUS ruling enshrining the electors to do whatever they want will lead to more of them doing just that. That's why Genghis' opinion as (I assume) a lawyer on the rights of the electors is interesting to me. The whole question is whether electors can be forced to cast a certain vote. It seems like there are two layers of protection for faithless electors, in both the 12th Amendment for electoral college members and just plain freedom of expression.

            The whole thing is unsalvagable bullshit and we need to just dump the EC.

  4. rwnemanich says:

    As one of the plaintiffs to reading most of the replies. The matter is simple if one reads the Twelfth Amendment which is solely about Presidential Electors which we call the Electoral College. The states possess an unalienable right to "CHOOSE" by law the electors, meaning a process is in place passed by the legislature and signed by the governor as to how and or who are the electors. CO like every other state decided to use the in-state popular vote to select the slate from the winning party. Each political party submits a slate of electors from each Congressional District and two at large equal to their congressional districts and Senate seats.

    Once the election is certified in CO than electors are certified and submitted to the Natl Archives. CO in 2016 along with 28 other states and DC had binding laws for the elector, but those are state laws and not Federal or Constitutional articles. The Constitution clearly stipulates that electors are to "VOTE" meaning express a will without regard to party or candidacy but "VOTE" and the 10th Appeals Court ruled that once an oath of office is taken the state has chosen its elector and that is where their statutory control ends, and then the elector is of a Federal Function, beholden only to the provisions of the Twelfth Amendment and Constitution. The state cannot coerce, threaten or sanction the vote of a federal function long-held precedence of other federal functionaries including US Marshall, FBI Special Agents, Fed Judges, Treasury Agents, Import or Export officers, census takes, TSA agents or any other functionary, in carrying out their duty.

    I know the assumption is you actually cast a vote for the President, but that is an illusion, you cast your vote for a party slate of electors.

    Stripping away this veneer is a strong measure to demonstrate that the Electoral System is broken and that only the Popular Vote can be the method of electing our national president. The National Compact Vote is a workaround and only can be accomplished by states choosing electors committed to voting the winner of the national popular vote regardless of the state's internal contest.

    My personal aim is that the above system might work for a few cycles, might but the only real guarantee is a Constitutional Amendment to use a national popular vote as the only method of electing the president and vice president.

    It goes to the heart of one person, one vote. But consider this: Each of us have a personal relationship with the Federal Govt through Income taxes, Social Security and Medicare and the President is fiduciary bound to manage our individual accounts accordingly. Should not every American have a voice in how this is managed? The states do not have an interest here. And whether one lives in the high plains of Wyoming, the shores of Maine, the ice fields in Alaska or a city neighborhood in Chicago or LA, the location of yourself should not matter as to weight or result of whom and how you vote. Forget the partisan crap. Its about your voice, equal to everyone else's and visa Versa

    • 2Jung2Die says:

      Interesting and thanks – I'll be waiting for the ruling! But while we're amending the Constitution, the part of the 12th Amendment about an election going to the House scares me more than faithless electors. It's by state, so the final score could be something like 26-24 with Rhode Island counting for 1 vote just like Texas, which I've been told is a pretty big state.

      • rwnemanich says:

        The entire Twelfth Amendment is flawed, especially in the postmodern world. States don't vote as states as partisan political parties are transnational. When phase II was played out in 1824 it resulted in JQ Adams. By the math, no 3rd party candidate could never become president even if the won the popular contest. So our legal efforts had much more to do with exposing the nature and broken system the Electoral College is and presents and hopefully by this and other political developments we as a nation do away with this Holy Roman Empire political vestige. 

    • So explain to me again how faithless electors destroy the NPVIC? 'Cause nothing you said above invalidates it.

      • 2Jung2Die says:

        Sorry PR, was that for me? If so, I don't believe faithless electors destroy NPVIC, though I'd still say they could make a difference in a close electoral college election, in theory.


      • Genghis says:

        You're right, it doesn't. Assuming enough states enact NPVIC that it actually takes effect (which, lol), then Colorado law will provide that all our electoral votes go to the candidate with the most popular votes nationwide. Faithless electors can't change the content of state law in that regard. 

        However, under the federal constitution, electors are not obliged to cast their votes as state law mandates; they can cast their votes however they goddamn jolly well please. As rwnemanich correctly points out, the only way to truly fix things is by amending the constitution to do away with the Electoral College and make the national popular vote the means of electing POTUS. 

      • rwnemanich says:

        Nothing except the states under those state laws have to choose their electors wisely. 

    • MADCO says:

      which means if a state gets enough votes cast for a candidate without party affiliation  Colorado chooses?


      OR the green Party chooses? even better.


      • Technically the candidates choose the Elector slate, not the parties.

        The fun part under NPVIC is what happens if the NPV winner didn't run or qualify in one of the NPV states? Then there's no slate of Electors to send. Chances of this happening are non-zero given that states have the ability to put qualifications on who makes the ballot. (Again, State Legislatures may select their Electors in any manner they see fit…)

        • MADCO says:

          love the idea of America.

          IRL – <smh> <chasing the ferret>

        • rwnemanich says:

          You are technically wholly incorrect. No candidate chose me. I was self-nominated like all other eight Democratic Electors, then voted in representing the 5th Congressional District by the CD-5 Democratic Party Congressional Assembly by the CD-5 delegates who were originally voted in at the caucuses and then voted in as delegates at their respective Democratic County Conventions. The two at-large electors were elected at the Democratic State Convention. I do not know how the Republicans do it but they have the process approved by the Secretary of State.  

          Then the party certified my nomination to the state by credentials review and certification. Once certified in August the state submitted my name to the National Archives and then after the general election the Democratic Party was selected by the voters who TECHNICALLY voted for the slate in voting for Clinton/Kaine ticket in using what is known as the short form ballot which in effect elected us in a winner take all contest. 

          Therefore TECHNICALLY you are mistaken in the whole and detail. 

  5. MADCO says:

    love the idea of America.

    IRL – <smh> <chasing the ferret>

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