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.