22 States Join Colorado To Stop “Faithless Electors”

A press release from Secretary of State Jena Griswold this afternoon:

Today, twenty-two states signed on to an amicus brief that underlines the urgency in Colorado’s petition asking the U.S. Supreme Court to review an unprecedented decision issued in August in Baca v. Colorado Department of State. The 10th Circuit decision states that Colorado cannot remove presidential electors if they fail to cast their ballots in accordance with state law, which requires presidential electors to cast their Electoral College ballots for the candidate who won the most votes in Colorado. Because the 10th Circuit’s ruling impedes Colorado’s ability to enforce state law and has the potential to undermine voters across the nation, Secretary of State Jena Griswold and Attorney General Phil Weiser have asked the U.S. Supreme Court to review the case and protect Americans’ fundamental right to self-determination.

In filing the petition to the U.S. Supreme Court, Secretary Jena Griswold said the 10th Circuit’s decision, if upheld, “undermines voters and sets a dangerous precedent for our nation. Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to voters’ choices and state law.”

The states that signed onto the brief request are Alaska, California, Illinois, Mississippi, Maryland, Nevada, Louisiana, Oklahoma, Arizona, New Mexico, Indiana, Nebraska, Ohio, Delaware, West Virginia, Virginia, South Carolina, South Dakota, North Dakota, Montana, Tennessee, and Rhode Island.

“Having twenty-two states support our petition to the U.S. Supreme Court underlines the urgency of this matter. When Americans vote in the presidential election, we are exercising our most fundamental right – the right to self-governance and self-determination. We have to preserve that right. Without swift action by the Supreme Court, the foundation of our democracy is at risk,” said Griswold.

The appeals court decision last August in the Baca v. Colorado Department of State case sent a shock through many more state capitols than our own, since the ruling threatens to destabilize the entire Electoral College system used to elect Presidents since the founding of the Republic. Although the notion of “faithless electors” is not new and historically very rare, the heightened awareness of the power of the Electoral College after two presidential elections in the past 20 years were decided adverse to the winner of the nationwide popular vote–combined with a ruling enshrining the right of electors to go “faithless”–could make them a regular, unpredictable, and decidedly un-democratic component of future elections.

As we’ve discussed in this space, the decision also complicates the as-of-now stalled implementation of the state’s National Vote Compact law, which would assign the state’s electoral votes to the winner of the national popular vote. The Compact doesn’t have enough participating states to take effect, and the law in Colorado is under challenge via a statewide ballot question set for next November–but if the 10th Circuit’s ruling in this case prevails, NPV would be impossible to enforce here or anywhere else.

The one upside we can offer is that if the end result of this court battle is an Electoral College that no longer functions as the Founders intended, or no longer has the public’s confidence, it could result in the change the Electoral College’s opponents desire faster than any other means. We and everyone else with a stake in the outcome of presidential elections–meaning everybody–should be watching closely.

8 Community Comments, Facebook Comments

  1. mikefoote says:

    The Baca decision, even if it upheld, does not really have anything to do with the national popular vote and wouldn't affect the compact.  The state party of the presidential candidate winning the most votes nationwide would still choose Colorado's electors.  The chances of the party choosing electors (presumably chosen for their belief in the party and its values) who would be faithless are pretty slim anyway, but even slimmer considering it would mean voting against that party's winning candidate. 

    In other words, if the Dem candidate wins the most votes nationwide, Colorado's Dem electors won't suddenly decide to vote for the Republican.

    • MADCO says:

      Doesn't really have to do with…. what?!

      Of course it has everything to do with it.
      Electors are either bound or not.

      If not – electors can do whatever they want. 
      If yes- who binds them to what? Colorado law?


      • bullshit! says:

        Party loyalty I guess? I don't find that terribly comforting either.

        Let's just get rid of the excrable Electoral College…

      • mikefoote says:

        24 states have never had laws requiring electors to vote a certain way.  There's not a single recorded instance of electors in those states going "faithless."  It's not about the law, it's about how the electors are selected.

        • JeffcoBlue says:

          I'll defer to experts, and you're a smart guy Rep. Foote, but I think the point is if the SCOTUS explicitly gives electors the right to be faithless there will be a lot more so-called "Hamilton Electors." Colorado Pols says faithless electors are historically rare and thats true, but Michael Baca would like it not to be.

      • If the slate of electors sent was nominated by the NPV winner, then how do faithless electors matter? (That is how electors are chosen these days, if you didn't know.)

    • JeffcoBlue says:

      I personally doubt NPV will ever take effect. I'm pretty worried it's going to get repealed. Democrats haven't sold it well in CO.

      I'm not sure the Baca ruling is wrong though. You can't compel someone to vote a certain way. If SCOTUS upholds Baca it will send the message that faithless electors are protected and it could open the floodgates.

      If that happens I can see how the NPV compact would be screwed if another faction decides they need to be Hamilton Electors. That was the point right? Every time I rule something out Trump gets elected or something else unthinkable.

  2. I don't know why this is so important to anyone. It's not the intent of the Constitution, which envisioned state legislatures choosing a slate of people they thought wise enough to make a proper decision on the Presidential question.

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