The Volokh Conspiracy

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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.