Appeals court says Colorado electors don’t have to vote for winner of state’s popular vote

A federal appeals court ruled Tuesday evening that Colorado’s presidential electors do not have to back the candidate who wins the state’s popular vote.

The decision could have significant consequences for future presidential contests and is likely headed to the Supreme Court. 

The 10th U.S. Circuit Court of Appeals in Denver ruled in a 2-1 decision against the Colorado secretary of state in a case stemming from the 2016 presidential race.

At the time, three of the Centennial State’s nine electors tried to vote for candidates other than Democrat Hillary Clinton, who had won the state’s popular vote.

{mosads}The appeals court ruled that the Constitution provides “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 decision was written by U.S. Circuit Judge Carolyn Baldwin McHugh. 

The case before the appeals court revolved around a dispute over the decision of then-Secretary of State Wayne Williams to order the three electors to back Clinton. 

Michael Baca, one of the electors, declined, instead opting to back then-Ohio Gov. John Kasich (R) as part of an attempt to deny Donald Trump a victory. He was later removed and replaced with another elector who voted for Clinton. The two other electors also wanted to vote for Kasich but chose to vote for Clinton instead of being replaced.

“Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector,” the court said. “Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote binding provision.”

U.S. Circuit Judge Mary Beck Briscoe wrote in her dissenting opinion that the legal challenge was moot since no damages could be rewarded.

Colorado Secretary of State Jena Griswold (D) told The Colorado Sun Wednesday that the ruling “sets an extremely dangerous precedent.”

“Our nation stands on the principle of one person, one vote,” she said in a statement. “We are reviewing this decision with our attorneys and will vigorously protect Colorado voters.”

Lawrence Lessig, the Harvard University law professor who heads the group Equal Citizens and argued in front of the court on behalf of the three electors, hailed the ruling as a “landmark opinion.”

“We know Electoral College contests are going to be closer in the future than they have been in the past; and as they get closer and closer, even a small number of electors could change the results of an election. Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election,” he told the Sun.

Lessig added on Twitter that he believes the case is headed to the Supreme Court.

Critical decision in the 10th circuit, with an extraordinary opinion finding states cannot control how presidential electors vote. This issue (via a parallel Washington State case) is on its way to #SCOTUS. https://t.co/27xdl608ZM

— Lessig (@lessig) August 20, 2019