States May Not Cancel Votes of "Faithless" Presidential Electors

So a Tenth Circuit panel held yesterday.


An excerpt from yesterday's very long Tenth Circuit panel opinion in Baca v. Colorado Dep't of State, written by Judge Carolyn McHugh and joined by Judge Jerome Holmes:

Micheal Baca, Polly Baca, and Robert Nemanich (collectively, the Presidential Electors) were appointed as three of Colorado's nine presidential electors for the 2016 general election. Colorado law requires the state's presidential electors to cast their votes for the winner of the popular vote in the state for President and Vice President. Although Colorado law required the Presidential Electors to cast their votes for Hillary Clinton, Mr. Baca cast his vote for John Kasich.

In response, Colorado's Secretary of State removed Mr. Baca as an elector and discarded his vote. The state then replaced Mr. Baca withan elector who cast her vote for Hillary Clinton. After witnessing Mr. Baca's removal from office, Ms. Baca and Mr. Nemanich voted for Hillary Clinton despite their desire to vote for John Kasich.

After the vote, the Presidential Electors sued the Colorado Department of State (the Department) …. We conclude Mr. Baca has standing to challenge his personal injury—removal from office and cancellation of his vote—but that none of the Presidential Electors have standing to challenge the institutional injury—a general diminution of their power as electors….

Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right. The electoral college did not exist before ratification of the federal Constitution, and thus the states could reserve no rights related to it under the Tenth Amendment. Rather, the states possess only the rights expressly delegated to them in Article II and the Twelfth Amendment. Those constitutional provisions grant states the plenary power to appoint its electors. But once that appointment process is concluded, the Constitution identifies no further involvement by the states in the selection of the President and Vice President.

And the states' power to appoint, without any duty to take care that the electors perform their federal function faithfully, does not include the power to remove. The Constitution provides a detailed list of procedures that must be performed by specific actors—not including the states—after appointment. The electors must list all votes cast for President and Vice President, certify thatlist, and send it to the President of the Senate. Even where an elector violates a state-required pledge to vote for the winners of the state popular election, there is nothing in the federal Constitution that allows the state to remove that elector or to nullify his votes. And in the absence of such express authority, the states may not interfere with the electors' exercise of discretion in voting for President and Vice President by removing the elector and nullifying his vote. Neither historical practices nor authoritative sources alter our conclusion.

Secretary Williams impermissibly interfered with Mr. Baca's exercise of his right to vote as a presidential elector. Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply 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….

Judge Mary Beck Briscoe dissented:

… I would not reach the merits of the issues presented but would instead conclude that this case is moot…. [T]he Presidential Electors lack standing to pursue prospective relief…. [A]n award of damages is retrospective relief, … [but] Section "1983 creates no remedy against a State." By suing the Department, the Presidential Electors have sued the state of Colorado. Therefore, § 1983 affords the Presidential Electors "no remedy against" the Department. [And a]bsent a plausible claim for nominal damages, this case is moot….

UPDATE: I originally mistakenly labeled Judge Briscoe as the author of the majority, and Judge McHugh as the author of the dissent; as my parents say (though they say it in Russian), that was said with "180 degree precision." My apologies for the error, and thanks to reader Michael L Rosin for the correction.

NEXT: THE Volokh Conspiracy keeps you up-to-date on THE Trademark System

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. This seems right to me, despite my preference that electors vote as they promised while running for the position. It’s pretty clear that states aren’t given the power to dictate who gets the electoral votes, but instead only who casts them.

    The whole point of having electors was that they could exercise discretion, in response to information that might come out about Presidential candidates after their selection.

    1. “The whole point of having electors was that they could exercise discretion, in response to information that might come out about Presidential candidates after their selection.”

      The first part of your sentence is correct. The second part is completely wrong.

      The original idea was that the electors chosen by each state (and, in many cases, chosen by state legislatures, not by the people as whole) would exercise discretion in whom to vote for. The idea was that a group of thoughtful and responsible men would choose a group of electors, who were also supposed to be thoughtful and responsible men. And those electors would then each choose two names for President, based on the electors’ thoughtful and sober and measured consideration of the character and abilities of the candidates. This mode of electing the President came about, in considerable measure, due to the suspicion of democracy and popular rule among many of the framers of the Constitution.

      But none of it had anything to do with “information that might come out about Presidential candidates after the election.”

      1. The second part is not so much wrong as simply irrelevant.

    2. This is a classic example of how a living Constitution gets you the right result sometimes and originalism lets you down.

      The problem is we no longer use the EC for its original purpose. It is just a counting mechanism now. To graft the original understanding of electors’ power onto the modern system creates a situation where these 538 people have power that nobody wants them to have.

      1. No it isn’t. First, this has squat to do with original understanding. The relevant consideration for originalists is original meaning and there’s no reason to believe that the current meaning of the relevant bits of Article II and of 12A differs from the original meaning by even a hair. (If you think it does, feel free to elucidate.)

        Your point has nothing to do with originalism and really boils down to discontent with the entirely unambiguous content of an old law. “I don’t like the result of what the text of the Constitution means, neither apparently does Brett, so the judges should make up some new stuff out of their rear ends, that suits me better.”

        If you like that approach, fine, but it can hardly be pretended that it has got anything to do with a system of law.

        1. LOL. As if all law does not include the effects of sober, reflective actors, despite the efforts of mindless pedantic historians.

        2. Lee, the same Constitution you are citing calks for a common law legal system. Allowing the meaning if the Constitution to take into account historical context is not “ignoring” its meaning. It is interpreting it exactly as the framers wanted us to.

          In contrast, saying “I don’t care how far we are away from the original context, I am going to slavishly enforce the words even if they make no sense” is VIOLATING the Constitution, because it is rejecting the common law tradition mandated in the document.

          1. Good to know we can throw out the entirety of the United States Code as unconstitutional.

          2. And if somebody should decide that the contemporary practice is the president serves for life and picks his own successor, and satisfies the formalities of popular vote by giving the people who vote for the electors a pre-written ballot with his name on it and disqualifying them if they try to vote differently, do you think ancient technicalities will be allowed to stand in the way of that?

          3. Your notion of the common law seems highly eccentric. Common law judges are supposed to make law only where some is required and none exists. By considering custom. Then they are supposed to stick to precedent. And if statute should be enacted overruling common law precedent, they are supposed to follow statute. Slavishly enforcing the words.

            “If they make no sense” is doing a lot of obfuscatory work. If the words are word salad and have no discernable meaning, that is the sense in which judges are permitted not to follow them slavishly…for there is nothing to follow. But if they do have a discernable meaning but the judge thinks they “make no sense” by comparison with the policy the judge would have enacted had he been a legislator, then he’s supposed to swallow his own preference and do as the law tells him.

            If he doesn’t he’s not a judge. He’s a usurper.

            1. That’s not entirely true. I’m no scholar, but off the top of my head there was the development of product liability without privity; the judge-made expansion of the assignability of legal claims, and ultimate recognition of partial assignments of same; the migration of subrogation from a bill in equity to a legal right; varying rules about what constitutes maintenance, champerty and barratry, and what is or is not void by reason of public policy. It is not an everyday thing, but state supreme courts overrule long-standing precedents, and how does one explain “minority” and “majority” common law rules that vary from state to state or between the various common law countries world-wide for that matter. Under your view, how is it even possible to make a “good faith argument to change existing law?” If it is beyond the role of any judge to do so, it cannot be in good faith.

              1. how is it even possible to make a “good faith argument to change existing law?”

                By arguing in good faith that existing precedent was wrongly decided ?

                If it is beyond the role of any judge to do so, it cannot be in good faith.

                Sure, but it is only beyond the role of a judge who is bound by the existing precedent. Higher court judges are not bound by precedents set by inferior courts.

        3. The relevant consideration for originalists is original meaning and there’s no reason to believe that the current meaning of the relevant bits of Article II and of 12A differs from the original meaning by even a hair.

          That, right there, is why originalism is fatally vulnerable. No person versed in the practice of history ought to endorse any such conclusion. There has been an interval of more than 200 years, during which experiences, thoughts, and political events unknown and unanticipated by the founders may have altered original meanings, and given them more-recent inflections relied upon unawares by people today. It would be remarkable if that had not happened in the case of the electoral college.

          Given that, the premise should always be that present understanding, uninformed by specific consideration of the historical record, is never adequate for interpreting original meaning. “I can see and understand the meaning of this unambiguous antique sentence,” is not always quicksand, but it is always a confession of ignorance about how historical meaning must be confirmed.

          1. In an adversarial system, there are two sides duking it out. If one side wishes to argue that the ancient meaning was different from the current meaning, them fine, let battle commence.

            Originalism is simply a subset of textualism, which provides a rule of decision when a legal text means something different at the time of enactment or adoption, and at the time the case is being heard. If neither side wishes to argue that there is such a difference, there is no point undertaking the enquiry.

            Now, if you consider, based on your learned historical and linguistic scholarship that the relevant bits of Article II and 12A did not mean what they appear to mean now, feel free to shower us with your learning.

            But unless and until one side wants to argue the point, current meaning – which has the great advantage of being immediately accessible – will do fine.

            That current meaning is an acceptable proxy for original meaning is a perfectly sensible – but rebuttable – presumption. In the same way it is a perfectly reasonable – but rebuttable – presumption that words should be understood in their natural sense, rather than in any special technical sense.

            It would be an enormous waste of time to insist that lawyers must research ancient meanings of “woman”, “fish” and “bicycle” if both sides already agree on what they mean in the relevant statute. Such an enormous, expensive and pointless waste of time that I am suddenly astonished that it is not set in stone as a rule of the courts.

  2. Is that the way the Tenth Amendment works? Any rights not held by the state before the consititution existed cannot be protected by the 10th?

    That’s sure not how it reads.

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    1. I think the court poorly framed its logic, but still reaches the correct result. The State’s role ends once it selects electors. The elector obviously has discretion. There was no need for “X did not exist before the Constitution, therefore the State is powerless.” Indeed, it seems to be open to challenge: States have recalled elected officials before–even pre-dating the Constitution–so recalling an elector is well-within the scope of a State’s reserved powers. Counter to that argument is basically: State’s role ends after appointment.
      Regardless, I think more difficult (and interesting) questions are presented by a State recalling a Senator.

      1. The State’s role ends once it selects electors.

        Constitutionally, how do we know that?

  3. I’d agree that electors, once appointed, can vote their conscience, but I don’t see how the courts get involved.

    Congress gets to count the votes. After the Hayes/Tilden dustup, they provided a means by which Congress itself adjudicates challenges to the official electoral count.

    So if Congress makes a mistake certifying the electoral results, and after hearing the evidence they refuse to correct their mistake, then the mistake stands, and the best you can do is write law-review articles urging Congress not to follow that precedent in the future.

    1. I mean, if we absolutely have to attribute to the Framers a scenario when the election results don’t get fully established for three years, then so be it, but if a plausible alternative interpretation of the Constitution is readily available – and it is – then why not adopt *that* interpretation?

    2. I’d agree that electors, once appointed, can vote their conscience, but I don’t see how the courts get involved.

      The courts get involved because there’s state law telling the electors that they can’t vote their conscience.

      1. The courts can question Congress’ count?

    3. Would you apply the same logic to electors for Congress?

      Each house is the judge of ithe elections and returns of its own members. So if this logic holds, if some Secretary of State for example disqualifies every senatorial elector who refuses to vote for the Republican senator, no justiciable injury has occurred. The applicable house of Congress can simply choose to count the vote anyway if it wants. And if it doesn’t, constitutionally it’s Congress’ prerogative, and the courts have no role or business interfering. A congressional elector disqualified for voting for a candidate different from the one the Secretary of State specifies therefore has no cause to complain.

      1. I expect something like that from Mitch McConnell in the next election.

      2. “no justiciable injury has occurred. The applicable house of Congress can simply choose to count the vote anyway if it wants.”

        Indeed, each house of Congress can “Judge” Congressional elections. Which includes reinstating previously-rejected votes and awarding the election to the one whose votes were previously rejected. Sounds very close to a judicial proceeding, certainly close enough for government work.

  4. Roger MacBride put the LP on the map and Hospers and Nathan ended all hope of expanding Comstock laws to pander to Dixiecrat fears of race suicide in these States. That spoiler vote effect leveraged all the way into Canada, which today has no laws forcing women to reproduce against their will. The rapist mentality is understandably taken aback. Just as bothered are the Ecological National Socialists who took out ads urging electors to defect and help the Dems drive up the cost of electricity the way the GOP seeks to drive up the place of recreational plant leaf products. My schadenfreude goes out to both halves of the looter kleptocracy.

  5. Electors have a legal right to be faithless, but absolutely no moral right. They have no mandate to be independent deciders, because they were never vetted for that role. It’s absurd that we still give them the legal right. We complain about being governed by presidents who hide tax returns, but then, we let ourselves be governed by electors about whom we have seen literally nothing.

    1. “We complain about being governed by presidents who hide tax returns”

      Reality check: Very few people actually complain about that.

      1. “We”?

        “Democrats” is what you mean

        Trump did not “hide” them, he was under no legal and very weak moral obligation to disclose them, so he did not.

        1. There should not be a legal requirement (as I wrote recently in the LA Times, ), but the long-held bipartisan practice of publishing presidents’ returns shows that many people considered it a moral requirement .

          1. A 40 years old practice. Younger than I am.

            Like I said, weak.

            Is there any evidence that a single voter in 40 years was influenced by tax return release?

            1. Given how much Republicans bashed Hillary Clinton over the head with hers, I’m going to say yes.

              1. Republicans bashed Hillary over her tax returns?

              2. I gotta go with Armchair on this one. A quick google search for “clinton tax returns” brings back very little beyond stories about the release and the pressure that they were expected to bring to convince Trump to release his own tax returns.

                Now, the Clinton Foundation tax returns are a different story. There was considerable controversy over details found in the Foundation’s tax returns. But those were matters of public record already. They were published on the National Center for Charitable Statistics website. They are irrelevant to the debate over whether politicians should release their personal tax returns.

        2. “very weak moral obligation?”

          Really? You mean if you repeatedly promise to do something you have only a very weak moral obligation to do it?

          And if you offer bogus excuses – “I’m under audit,” “You wouldn’t understand it,” and even fight in court against having to do it, you haven’t really done much wrong.

          So say the Trumpists, because the of the Trumpenprinzip – “Trump Can Do No Wrong.”

    2. “It’s absurd that we still give them the legal right.”

      Except that legal right is baked into the constitution, so the only way to legally remove that legal right from the electors is to amend the constitution.

      You are perfectly free to advocate a constitutional amendment to remove discretion from the Presidential electors.

      Any other method of removing said discretion is patently unconstitutional.

      1. Constitutional amendment is exactly what I’m advocating.

        1. That was not at all clear from your original comment. In fact, you seemed to be advocating judicial re-interpretation not constitutional amendment under Article 5.

          1. I was advocating a moral re-evaluation which should give impetus to a legal change. I agree that the only possible legal change is by amendment.

    3. If electors aren’t vetted for their roles, wouldn’t that be the fault of the appointment process?

      Currently many states overtly mislead voters by not even identifying the names of the electors they select, let alone enabling them to make informed choices.

      It’s this fact that’s the reason electors aren’t vetted. It’s a moral failing of the legislatures, not the electors.

      It’s one thing to wish that one had a machine that performs blood tests on a pinprick or that voters directly elect presidential candidates. It’s another thing to go out and sell the public on a lie that this is the actual situation. When people are misled by false representations, they are defrauded out of their power to protect themselves and make informed choices among the options actually open to them.

  6. Would there be any Constitutional issue with making an elector vote in a way contrary to his pledge a serious felony, punishable by significant prison time?

    1. That was exactly my question, and I was typing it out as your posted (see below). I’ll be interested to hear the answer.

    2. Let’s take an analogy: You are free to vote for whoever you like in an election. That seems to be pretty well established, constitutionally. But does that mean the state could still put you in prison for voting for someone who isn’t a Republican?

    3. I would assume that, if the electors are entitled to exercise discretion as a matter of constitutional law, then any law punishing them for doing so would be unconstitutional.

  7. I’m not a lawyer, and nor am I an expert on how legal decisions like this one work, but I have a question about consequences for faithless electors.

    The court has determined that Colorado can’t remove the faithless elector, and can’t nullify that elector’s vote for President. But could Colorado attempt to forestall faithless electors by making it a crime, punishable by time in prison, for failing to elect the candidate chosen by the majority of voters? That is, a faithless elector’s vote would still have to be counted, but he or she would then be carted off to the slammer.

    I’m not advocating this as a solution. I’m just curious as to what, if anything, the state can now do to enforce its own law. At the very least, maybe parties will choose their electors more carefully from now on.

    1. The Tenth Circuit framed the question as follows:

      The issue we must address in this case is therefore whether the Department violated any constitutional right Article II and the Twelfth Amendment confer on Mr. Baca based on the delineation of those rights.

      If Baca has a constitutional right to be a faithless elector, then the state cannot punish him for exercising that right.

      1. Hmm. I don’t know if that is true. Article II states: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors…” The “manner” of appointment could, and usually does include a pledge to vote for the winner of the state election. Such pledges are constitutional, whether made to the political party that proposes the slate “elected” or to the state. In the former case, I think the pledge is in the category of a campaign promise, and likely unenforceable. But breaching a pledge to a state, it seems to me, is an offense that could be punishable by at least civil penalties. I also think the pledge, in either case, could be made under oath, which would leave the elector subject to perjury prosecution, at least to the extent that it misrepresented the elector’s intention to abide by the pledge, whoever might prevail.

        1. The court did not address whether “manner” included a pledge. But assuming for the sake of argument that it does, I think the court’s conclusion that there is a constitutional right to be a faithless elector means there is a constitutional right to break the pledge. And, you cannot be punished for exercising a constitutional right.

          1. That’s not really what the court said. It said the state had no power to remove an elector or nullify the vote. Hence doing so is unconstitutional. On the other hand, political parties may require that an elector pledge to vote for its nominee by statute. Ray v. Blair, 343 U.S. 214, 231 (1952). State civil penalties imposed on faithless electors have also been upheld. Chiafalo v. Inslee, 224 F. Supp. 3d 1140 (W.D. Wash. 2016). It bought the same argument I cite above:
            “Washington has no law precluding Plaintiffs from voting as they choose—and having those votes counted—in the Electoral College. The only potential State-imposed repercussion before the court is the discretionary civil penalty”
            Granted, it smacks a bit of the pre-24th amendment cases upholding the poll-tax for federal elections, but state poll taxes were only eventually struck down on equal protection grounds. I don’t see a separate constitutional provision here that would make a penalty for breaching a pledge to the state unconstitutional.

            1. Supported by my above quote, I continue to disagree with your interpretation of what the Tenth Circuit held. I do however agree that my interpretation of this decision is at odds with Chiafalo.

              1. To quote the 10th Cir: “Those constitutional provisions grant states the plenary power to appoint its electors.” Read together with Ray v. Blair, it suggests that a state can do anything it wants until the selection of the elector, including, one would think, extraction of a solemn oath to vote the way the state wants. Long ago the Supreme Court stated:
                Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors the original expectation may be said to have been frustrated. [cites omitted] But we can perceive no reason for holding that the power confided to the States by the Constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created.

                McPherson v. Blacker, 146 U.S. 1, 36 (1892). In short, I would argue that the state has the power to do anything it wants to ensure that the elector votes the way it wants; it simply cannot change the electors’ votes, once selected. It has “plenary power” over the qualifications and duties of an elector. Often one’s “rights” conflict with a duty. A state can prosecute a legislator who takes a bribe to vote a particular way, even though the vote stands. I see no reason why it cannot prosecute a “corrupt” elector, derelict in a duty the state has the constitutional power to impose.

                1. I’m not disputing that a state can do anything it wants until the selection of the elector, including extraction of a solemn oath. I am disputing whether a state can provide a civil penalty after an elector breaks the oath.

                  Often one’s “rights” conflict with a duty

                  Your use of quotes highlights our disagreement about how to interpret this decision. As I read the opinion, Baca has a constitutional right to be faithless that takes precedence over any duty.

                  1. What if the elector takes a bribe? The state has no power to change the vote, but it can prosecute for bribery. How is that different from punishing for perjury or breach of faith?

                    1. A bribe is a crime irrespective of the fact it was taken to change the elector’s vote. Thus, punishing him for taking a bribe is not motivated by deterring him from exercising a constitutional right and he remains free to exercise that right so long as he doesn’t take the bribe.

                      In contrast, the civil penalty for breaking his pledge is exclusively aimed at him changing his vote. Thus, the civil penalty is only motivated by deterring him from exercising a constitutional right and he does not remain free to exercise that right.

      2. It seems likely that it’s the state law which is unconstitutional.

    2. @ hendo,

      That’s my question, too. I understand a lot of states (not sure about Colorado) impose some sort of penalty (a fine, at least) for electors who vote against their promise. I’d be curious to know what the implications for this decision are for those penalties.

  8. The electoral college is a critical part of our electoral system, and this case helps to illustrate this, especially in light of such actions like the National Popular Vote Interstate Compact.

    In theory, such a college could be corrupted. (IE, several dozen electors could somehow be convinced to switch their votes, against the will of their populations). In practice, however, such an action would be fairly clear, and liable to be overturned by the House of Representatives.

    The converse (a corrupted national vote) would be far more difficult to overturn in the House, and the EC remains a stalwart wall to defend against such.

    1. I prefer a national popular vote. However, I would be willing to keep the electoral college if we 1) make the math automatic (no human electors) and 2) award electoral college votes per state in proportion to the statewide popular vote with a minimum popular vote threshold for receiving any electoral college votes.

      The latter condition will nullify the unjustified increased voting power of citizens of purple states conferred by the current winner-take-all system.

      1. So you’re willing to keep the electoral college so long as we effectively turn it into a national popular vote.

        1. That’s pretty much my position. As it is now it’s a travesty, and this ruling makes it worse.

          1. Advocate for a constitutional amendment to eliminate or restructure the electoral college process.

            Any /every other means you try to use to get around it is unconstitutional.

        2. My proposal isn’t the same as a national popular vote because it retains giving a Wyoming voter greater power than a California voter.

      2. The NVP (National popular vote) system has a number of flaws, as does your “modification” which essentially is a NVP system.

        One of the largest flaws is that it’s less well understood that elections are handled at the state level, not the national level.

        Currently, if a candidate is kept off the ballot in a particular state due to weakness in that state, he or she can only lose that state. IE, if Trump, for example, was kept of the ballot in California, he could only lose California. However, under an NPV system, if Trump is kept off the ballot in California, he could lose the National election (because of the millions of voters there).

        1. Congress should require uniform ballot access for the Presidency.

          1. Uniform ballot access for who? Major parties? Minor parties? Anyone who wants? Combined with a NPV system, this is also ripe for abuse.

            Or perhaps you’re asking to federalize elections, and take them entirely out of the hands of the states?

            1. I do not understand your comment about access for “major parties,” “minor parties” or “anyone who wants.” Perhaps you can give an example of abuse that could result from federally-specified uniform ballot access rules for the Presidency?

              1. Sure, I’ll give an example of the potential abuse.
                Let’s assume that the some of the most lenient ballot access rules are used and enforced nation wide. Those are Louisiana’s, where a candidate only needs $500 to get on the ballot for President.

                Now, let’s say the GOP is a particularly devious organization. And in 2016, they find 5 people named Hillary Clinton. And they arrange for them all to be candidates, and get all these Hillary Clintons on the ballot in California. For the low cost of $2500. And of course, California can’t do anything about this.

                Now, under the current rules, even this isn’t too much of a problem. Hillary Clinton (D) still wins at least a plurality, if not a majority of voters in California, and wins all the electoral votes for CA, even if hillary clintons pull off 5% of Hillary Clinton (D)’s votes.

                But under a NPV system, this matters a great deal. Hillary Clinton has lost almost 500,000 votes.

                1. You have just described something long known (and used) in Massachusetts politics as, “The name’s the same game.”

                2. Wouldn’t you end up with five people named Hillary Clinton and five people named Donald Trump on the ballot in every state? And wouldn’t that have no net effect?

                  1. 1. Perhaps. But you’re assuming equal simultaneous actions by the parties and equal effects, which is erroneous.

                    2. As for net effect…depends how the election law is written. If it’s actually a NPV, remember neither candidate in 2016 actually WON a majority of votes. And this would further diminish that margin down to a plurality. Right now, with the EC and winner takes all, it doesn’t so much matter. But…But….if you really need a majority, then you have a situation where no candidate actually wins a majority of the EC, which kicks the election to the House.

                    1. I’m assuming California won’t abuse ballot access because it knows that red states will do likewise. But if I am wrong about that, Congress can tighten the rules.

                      I’m also assuming the national popular vote would follow what almost all states do: a plurality popular vote winner for statewide elections which haven’t been comprised by ballot access abuse.

        2. The NVP

          National Vopular Pote?

  9. First, I’m not sure how Mr. Baca had standing to sue. I’m not convinced he had a constitutional right that was infringed here. Even if he did, he wasn’t the injured party. The only person who could reasonably argue injury would be Sen. Clinton, but she wouldn’t have received enough votes to win anyway.

    Second, what is Congress’ role in this process? The 12th Amendment gives Congress the authority to count the votes. Shouldn’t Congress be the ultimate decision maker on which votes get counted? This case should have been dismissed as a political question.

    Finally, what happens when a faithless elector changes the result of a Presidential election? Will the court decide the election?

    1. How was he not the injured party if he was removed from an office he was elected to?

      1. Because he received no benefit from acting as an elector.

    2. – “First, I’m not sure how Mr. Baca had standing to sue.”

      Really? I thought this was a pretty good clue:

      “We conclude Mr. Baca has standing to challenge his personal injury—removal from office and cancellation of his vote”

      1. That is indeed what the court wrote, but what is the actual, concrete injury suffered by Mr. Baca here? Loss of income or reputation? Is acting as an elector a paid position?

        1. Suppose the state crossed you off it’s list of registered voters and you couldn’t vote for members of the House of Representatives or the Senate. What injury would you suffer? Loss of income or reputation? Is being an elector for the House of Representatives or an elector for the senate a paid position?

          Why would you have standing to challenge any action a state might choose to take to deny you your right to vote? And why would being a House of Representatives or Senate elector make you any different, for standing purposes, than being a Presidential elector,

        2. Denial, by the state, of a constitutionally guaranteed right.

      2. I disagree with the court that this was a personal injury.

        There is no benefit to the elector for casting a vote in the electoral college.

  10. The states are wasting their time with these elector pledge laws. Why not just appoint actual AI robots instead of humans who refuse to behave robotically? The majority recognized (and the dissent didn’t seem to disagree) that the states have plenary power over appointments (subject to the express restrictions set out in Art. II, § 1, cl. 2), so does anyone think that would be problematic? If corporations can be people, then why not robots too. At least robots are composed of matter, so they have that going for them over corporations.

    On a more serious note, who thought the dissent might have the better of it? The dissent’s conclusion seems like it could be correct to me, but the reasoning seems a little off. Wouldn’t it just be a case of lacking statutory subject matter jurisdiction under § 1983? Saying the damages claim is moot because a state department is not a § 1983 person suggests that at some earlier point in time the claim was ripe, but that can’t be right. Or maybe it’s a fundamental lack of standing, but mootness just doesn’t seem like the right doctrinal approach in this case.

    Relatedly, assuming the dissent is right, does anyone have thoughts on how the § 1983 jurisdictional hurdle could be surmounted for the damages claim? Obviously naming the SoS or AG in their official capacities would not cure the infirmity.

  11. “The majority recognized (and the dissent didn’t seem to disagree) that the states have plenary power over appointments (subject to the express restrictions set out in Art. II, § 1, cl. 2)”

    Um, the voting rights amendments and the VRA, which were probably not considered by the majority in this case, as they aren’t actually relevant to the outcome of this case, might have something to say about that.

    1. First, thanks so much for the non-reply “reply” (including because you didn’t use the little Reply link with the arrow icon) that you concede upfront only discusses an irrelevant issue.

      Second, um, do you happen to have a citation handy for that concededly irrelevant proposition you’re asserting?

  12. The Electoral College is and was a mistake. America is great enough to overcome it.

    1. So the Electoral College is the Biola of political colleges?

  13. An astonishing feature of the case, given the stakes involved, is how closely it came to be detailed in the 10th Circuit by the plaintiff’s lawyer’s remarkable failure to name the Colorado Secretary of State as an individual defendant in addition to the Department of State. Colorado’s Department of State is pretty clearly an arm of the State of Colorado and thus both not a person susceptible to suit under the statute, and immune under the 11th Amendment. Only because the State of Colorado was extremely charitable in waiving these defenses, and the 10th Circuit majority was equally charitable in not noticing them sua sponte, was the case susceptible to decision at all.

    My general view is that courts should not reach difficult constitutional questions absent clear standing and a clear legal right to sue. I’m not sure the majority was correct to reach the merits. The Supreme Court might well decide it wasn’t.

    All because of omission of what ought to be an obvious, routine element of federal any civil rights suit.

    1. A more jaded individual might argue that the plaintiff, state, and court were all interested in reaching the same result and acted accordingly to avoid tricky constitutional questions that might prevent the court from reaching that result.

    2. The reason why suing the Secretary of State individually was that if he had been sued, sure he would have gotten qualified immunity for damages purposes. But what this decision makes clear is that Mr. Baca could have gotten an injunction against his interfering with his vote.

      The reason Mr. Baca was denied injunctive relief originally was that by suing the department of state, he made it very questionable whether he had a claim on the merits in light of the department’s obvious statutory and 11th amendment defenses. But the Secretary of State as an individual wouldn’t have had these defenses.

      Sure, Mr. Baca couldn’t have collected a dollar from him after the fact. But I’m sure he would have been much happier if the case had resulted in pre-hoc injunctive relief and denial of the dollar’s damages than what happened here, denial of his pre-how injunctive relief and then a post-how dollar solely because Colorado decided to waive its defenses.

      If he had gotten pre-hoc injunctive relief, a decision in his favor before the electoral college convened, it’s entirely possible that this might have emboldened additional people to change their votes and hence improved his chances of succeeding.

      And he didn’t that relief, it appears to me, solely because he didn’t sue the Secretary, the only proper part for injunctive relief, by name.

  14. That said, I completely agree with the decision on the merits. Under the 12th Amendment the appointment power ends once electors are appointed, and terms like “elector,” “vote,” and “ballot” necessarily imply a free choice.

    A state can no more require a presidential elector to vote as it wishes, and has no more power to remove or prosecute one for failing to vote as it wants, than it can for an elector for the House of Representatives or the Senate.

  15. The panel majority properly held that plaintiff suffered an injury, but still blew the standing argument by failing to take seriously the redressability requirement, as much a part of standing law as injury in fact. Whether the plaintiff (erroneously) sued an arm of the state or sought relief against the named state actor, he has no claim. For reasons noted by the dissent, the state and its agencies are not persons and cannot be sued under section 1983. Had the plaintiff instead named the relevant state actor as a defendant as in ex parte Young and Hafer v. Melo, he could only have sued him for nominal damages in his individual capacity; both Will and the eleventh amendment bar official capacity damages claims. Had he instead sued the proper state actor in his individual capacity, the ever expanding doctrine of qualified immunity obviously would have defeated the claim, and a sensible court would so hold after assuming but not deciding that it had standing, but without expressing any view on the merits. Agreement with the majority’s merits analysis (with which I happen to agree) does not excuse judicial overreach in reaching the merits.

  16. These comments have been heavily inflected by right wingers’ forward-looking precautions against state requirements to vote for the winner of the national popular vote. The decision’s argument that states have no freedom to appoint electors according to specific terms seem made up without basis, out of whole cloth.

    1. I don’t think the ruling stated that states could not appoint electors via the appropriate mechanisms, only that they couldn’t subsequently disturb that elector’s right to vote how he or she sees fit.

    2. The decision has nothing to do with, and doesn’t affect in any way, state rules about how electors are appointed. States can continue to appoint electors however they want, so long as they do so at the time of choosing specified by Congress. It merely says that state power applies to appointment only. Once the electors are appointed, once the time of choosing passes, the state’s role ends.

      1. It merely says that state power applies to appointment only. Once the electors are appointed, once the time of choosing passes, the state’s role ends.

        Right. The state’s role ends, and the federal government steps in with full power to govern every subsequent operation of the political process, which the state is forbidden by this decision to regulate.

        Now try it out this way:

        Rucho v. Common Cause expansively says that state power applies to drawing districts initially, and governing the political process subsequently. Once the districts are drawn, the state’s role is plenary. The federal government is powerless to govern any subsequent result of the districting process, no matter how much the district drawing corrupts subsequent political outcomes.

        See? In the first instance the federal government gets all the post-popular-election power, and the state gets nothing. In the second instance, the state gets all the post-popular-election power, and the federal government gets nothing.

        What do these apparently contradictory results with regard to federal power to govern national elections have in common? Political valence in favor of right wing election outcomes. In the first instance, the court decision undermines states’ ability to enforce any inter-state pact to make electors vote for the winner of the national popular vote—a result favored on the political right. In the second instance, the court decision undermines any ability of the federal government to govern partisan political gerrymanders—a result favored on the political right.

        I am having trouble understanding why different legal principles should govern outcomes of these two apparent political process cases, both involving the federal government’s power to govern political activity subsequent to popular elections.

        I note again, as I have before, that the federal judiciary, in its cases which affect the actual political process, is establishing a flagrant record of delivering outcomes favored by the political right. Since Roberts was appointed, I think the Supreme Court’s record has been 100% right-wing-favoring, in every such case the Court has actually decided.

        (If anyone has information to the contrary, I would appreciate being corrected. Remember, I am not talking at all about cases which are merely politically fraught, such as abortion cases. I am talking only about cases which actually affect how the political process works.)

        1. In Rucho, the Court held the federal judiciary had no role in partisan gerrymandering. It did note that Congress may intervene.

          1. Do you suppose, then, that Congress could likewise intervene on the question of faithless electors?

            1. Given that Congress has the plenary power to count the electoral college votes, I would think they could count the votes assuming all electors are faithful.

              1. I don’t even know what that could mean. An elector pledged to one candidate, who then votes for another candidate, is the case we define as a faithless elector, right? So how could Congress, confronted with that, assume all electors are faithful? Just assume the contrary of something which is true by definition? Or am I missing your point? I think I must be.

                1. Congress could count all the votes as if the electors were faithful.

                  1. Got it. It’s sort of legal positivism giving the raspberry to reality.

        2. “Rucho v. Common Cause expansively says that state power applies to drawing districts initially, and governing the political process subsequently. Once the districts are drawn, the state’s role is plenary. The federal government is powerless to govern any subsequent result of the districting process, no matter how much the district drawing corrupts subsequent political outcomes.”

          That is emphatically not what Rucho held. That is not even what Rucho was about.

          “I am having trouble understanding why different legal principles should govern outcomes of these two apparent political process cases, both involving the federal government’s power to govern political activity subsequent to popular elections.”

          No, you are just having trouble understanding the cases.

          1. jph12, thanks for the unexplained denial.

            Josh R was more helpful. Thank you Josh R, that was a good point about congress. It means my use of “plenary” was off the mark.

            Now, jph12, what do you think Rucho was about? I now think it was about giving states an okay to corrupt election results with partisan gerrymandering—a result applauded on the political right, and deplored on the political left. With the caveat, however, that a congress which could mobilize sufficient political power, and win the agreement of the president, could change the rule, and limit partisan gerrymandering. But probably only subject to a renewal of supreme court engagement, to once again take up a question the court now says it is powerless to decide. Or do you suppose the present court would stand on consistency, and just sit there and say, “Yup, if congress says so, that’s the new rule. As we said, we have no power on this question.”

            1. The Ruchio decision was along partisan lines. But, I am at a loss to explain why Republicans would favor partisan gerrymandering when at first blush it seems to me either party could engage in it.

              1. And in fact both parties do engage in it. Routinely. And one of the cases at issue in Rucho did in fact involve partisan gerrymandering by democrats.

              2. One thing that favors the left in these issues is that it’s easier for the left to engage in racial gerrymandering that creates partisan benefits than it is for the right, so restricting explicit partisan gerrymandering hurts the right more than it does the left.

                1. No. Racial gerrymandering imposes a political cost on the left, and gives an advantage, and moral cover, to pro-gerrymander election riggers on the right. The left tolerates that to keep intra-party peace with its minority-leading political satraps, but it pays a real political cost in losing the swing-vote influence it could otherwise have in more districts.

                  By the way, if you look at the wording of your comment, I think you will see that you wrote it as a self-contradiction. My comment assumes you meant, “so explicit partisan gerrymandering hurts the right more than it does the left.” If that is what you meant to say, you do not seem forthright.

                  1. “By the way, if you look at the wording of your comment, I think you will see that you wrote it as a self-contradiction.”

                    No I didn’t.

                    “My comment assumes you meant, “so explicit partisan gerrymandering hurts the right more than it does the left.” If that is what you meant to say, you do not seem forthright.”

                    Yes, if you assume I mean the opposite of what I say, then obviously I don’t appear forthright.

              3. Josh R, in any contest for partisan gerrymander supremacy, the structural advantage goes to the party which controls the most state legislatures. For now, and for the foreseeable future, it is a semi-permanent characteristic of American politics that that will be the Republican Party. The state power to supervise elections, including presidential elections, is one which Republicans have leveraged energetically on their own behalf.

                1. Yup, I sure hope the Republicans in Wyoming don’t use their control of the state legislature to draw the lines of their single congressional district to exclude democratic voters.

            2. “jph12, thanks for the unexplained denial.”

              You are most welcome.

              “Josh R was more helpful. Thank you Josh R, that was a good point about congress. It means my use of “plenary” was off the mark.”

              That’s far from the only thing that was off the mark.

              “Now, jph12, what do you think Rucho was about?”

              This isn’t about me. This is about you claiming that there is some kind of conflict between this case and Rucho despite demonstrating very little understanding of either.

              “I now think it was about giving states an okay to corrupt election results with partisan gerrymandering—a result applauded on the political right, and deplored on the political left.”

              Still wrong on the case analysis, but you are at least getting to the same sport. Read it, which I’m guessing would be for the first time, and I bet we can get you into the same ballpark.

              And I’m not quite sure how you square your claim that the left deplores partisan gerrymandering with the facts that one of the cases the Supreme Court decided involved blatant political gerrymandering by Democrats and that both parties routinely engage in blatant political gerrymandering when they have the opportunity to do so.

    3. I think Stephen’s point is it will be harder to find electors that will faithfully vote for the national popular vote winner than those will faithfully vote for a specific candidate, and thus this decision impacts the ability of a state to honor its commitment to the NPV compact.

      1. Suppose states had a compact for national election of Supreme Court justices by popular vote. Here too, the constitution has a completely different method of selecting Supreme Court justices. Under the constitution’s method, voters have no direct role at all, and the people who actually get to decide who the Supreme Court justices are similarly don’t have to follow any campaign promise or pledge they might make about who they will appoint once in office.

        Should the courts change the specific constitutionally prescribed method for selecting Supreme Court justices, or for that matter cabinet officers, just because states have decided they want direct election instead of the method of selection by officials the constitution specifically provides for?

        The issues here would seem to be similar.

        1. That’s a pretty long stretch there. The proposed compact to use national popular votes to govern the electoral college arguably falls among constitutional political powers retained by states and powers specifically granted.

          There is no peg of any sort in the existing constitution on which to base popular election of Supreme Court justices. The issue here does not seem similar at all. But your response does highlight, once again, how right wingers are trying to use the Supreme Court to tilt the political process their way—and getting a notably good result for their efforts.

          1. As the 10th Circuit correctly found, there isn’t really a peg in the existing constitution for direct election of presidents either. The constitution similarly provides for a completely different procedure, a president selected by electors.

            This is hardly a “right wing” issue. The opinion was written by an Obama appointee and the dissent was about whether it was possible to get to the merits, not the merits themselves. Frankly, the constitution is pretty clear. It lays out a very specific procedure that isn’t open to much ambiguity, and the stare’s role in that procedure ends at appointment. States and their officials don’t even have any role in counting the ballots. The term “elector” is also used for electors for the house and Senate. And the terms “elector,” “vote,” and “ballot” imply a free choice, by their plain meaning, as used in all three cases. The right to vote here, and the principal of one elector, one vote, is the same for all three kinds of electors.

            I acknowledge the example I gave is much more extreme. But it does get the point across. When voters aren’t even

          2. I agree that ReaderY’s analogy is inapt. Nonetheless, the plain text of Article II strikes me as supporting the court’s conclusion. And while it is true as a consequence, it may make it harder for states to honor their commitments to the NPV compact, that consequence ought not play any role in the analysis. Finally, it is not at all clear that quashing the NPV Compact favors the right wing.

      2. The more I think about it, I don’t see why this court decision would adversely affect the NPV Compact. If Michigan had been part of the NPV Compact in 2016, Clinton’s slate of electors would have been chosen. I don’t think there is any reason to believe these electors would more likely be faithless than if they had been chosen based on Clinton winning Michigan’s popular vote.

        1. Are you ignoring the argument, certain to be litigated, that if there is a constitutional need to keep electors free to exercise personal discretion, then the NPV Compact must be unconstitutional?

          1. The NPV compact must be unconstitutional because of Article I, Section 10. But it’s not unconstitutional because of this ruling, because (as always) you fail to understand the legal issues involved. The NPV does not purport to direct the duly-appointed electors who to vote for. It affects which slate of electors is appointed in the first place.

            To put it more concretely: if the NPV is in effect and in place in NJ, and Donald Trump beats out Elizabeth Warren to get the most popular votes nationwide in 2020, then NJ would appoint the Trump slate of electors even though Warren got the most votes within NJ. But members of that Trump slate of electors would nevertheless under this ruling be free to vote for Justin Amash if they chose.

          2. Why would it be unconstitutional? The opinion makes clear that states can require elector-appointees to make any promises they care to make them make as a condition of appointment, as long as they don’t have to keep them. There’s no constitutional difference between a promise to vote for the national winner is just as constitutional as a promise to follow the state winner.

            The situation is like Monty Python’s no-pay insurance policy sketch. “It says here that if you make a claim, we don’t have to pay it.”

            This is essentially the nature of the insurance policy that the state is issuing when it “insures” that the electors will do what voters vote for.

            A state can use such a policy to insure absolutely anything it wants. There’s no constitutional limit whatsoever on what such a policy can be written about, or the kind of coverage it can say it provides, so long as the no-pay clause applies.

  17. One problem here is the fact that in many states the names of candidates for elector don’t even appear on the ballot, and voters never even find out who they are actually voting for. This fundamentally disenfranchises voters, making it impossible for them to vet candidates or evaluate such fundamental questions as how likely they are to keep their promises.

    The attempt to maintain a fiction that presidents are popularly elected rather than selected by electors, and that ordinary citizens are voting directly for a presidential candidate rather than for an elector slate as they actually are, disempowers them and takes away their ability to make informed choices about the decisions that are actually theirs to make.

    Again, suppose presidential candidates were in turn to promise to appoint particular Supreme Court candidates, and the names of these Supreme Court candidates were put on the ballot rather than names of presidents. The situation would be similar, just one step removed, from the one we have today. Presidents have no obligation to keep any promises they might make, and by insulating voters from knowledge about the choices that are actually theirs to make, states would be similarly fundamentally disenfranchising them and disempowering them, giving them less say in the outcome than they would have if they were honestly informed about the choices they were actually making.

    1. It’s usually better to inform voters of the reality than to feed them fictions. Being honest with citizens about what they are actually doing helps them make better choices. Being dishonest with them decreases rather than increases their power. If they don’t even know who they are actually voting for, or anything about who they are actually voting for, how can they have any influence over the decisions the people they appoint make?

  18. States currently insure that electors will vote for the candidate for President that the state’s voters prefer. Monty Python provides an in-depth technical explanation of how that insurance policy works.

Please to post comments