The 10th U.S. Circuit Court of Appeals at Denver ruled 2-1 this week that the Electoral College system established by Article II and the 12th Amendment of the U.S. Constitution allows Presidential electors to vote against the candidate the popular vote in their state commits them to vote for. In 1952, the U.S. Supreme Court ruled that primary candidates for party electors can be required to pledge to support the party’s candidate, but according to this decision, that pledge is not enforceable.
The 10th Circuit’s decision was a victory for Michael Baca, a Colorado elector who in 2016 cast his vote for John Kasich, then governor of Ohio, even though state law at the time required him to vote for the winner of the state’s popular vote, who was Hillary Clinton. Baca said his intention was to persuade enough members of the electoral college to cast votes for Republicans other than Donald Trump in an effort to deny Trump a victory.
Ooh, good plan! One way to avoid this problem is for states to make sure their electors aren’t arrogant, undemocratic whack-jobs.
The state removed Baca as an elector and canceled his vote, causing two other electors to abandon their plans to vote for Kasich. All three joined the lawsuit against the Colorado secretary of state’s office, but the 10th Circuit found only Baca had standing to sue.
It seems that the decision has strong Constitutional law behind it. Baca v. Colorado Dep’t of State said in part,
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…
This sounds right on the law, but it does not mean that an elector breaching a pledge or defying the will of the voters is right, ethical or defensible. I would place it alongside the 9th Circuit ruling that it is constitutional to lie: this is another law vs. ethics case. Not all kinds of wrongful conduct are illegal, and some, like irresponsible speech and dishonest journalism, are Constitutionally protected.
It will be easy to avoid the “Hey! Let’s vote for some schlub who couldn’t even get nominated instead of the candidate the voters chose and hijack the system!” scenario: just choose electors who won’t and can’t violate pledges. Lawyers, for example, would face bar discipline for breaching a signed pledge. There’s a rule about that.
Ah! Now this all makes sense!Harvard Law professor Lawrence Lessig represented the Colorado electors in the 10th Circuit case! “This is an incredibly thoughtful decision that could advance substantially our campaign to reform the electoral college,” he told interviewers. Sure, Professor. Back to your padded room.
You may remember Lessig as the grandstanding Harvard Law professor who demonstrated that he had no respect for the process of electing a President by declaring his own candidacy for the Democratic nomination the following “plan”:
- Lessig would run as a “referendum president” who promises to serve only as long as it takes to pass the Citizens Equality Act of 2017.
- Lessig would use that mandate to get Congress to pass the Citizens Equality Act of 2017, which was less ridiculous than the Green New Deal, and that’s about the extent of its virtues,
- Once this package was passed, Lessig pledged that would step down, and the vice president would become President.
Now, based on his lawsuit, we know that Lessig doesn’t think people should be bound by “pledges,” so we can assess the nature of his (short-lived) candidacy and his sincerity about resigning.
Once the voters spoke and elected a candidate Larry didn’t approve of, he tried to orchestrate a whole mob of Michael Bacas. He embarrassed his school and his profession by misusing his authority and position by trying to meddle in a Presidential election by advising electors through his group “Electors Trust”—which was seeking untrustworthy electors, ironically enough—to veto the will of the people because he didn’t like the results. Lessig was a human template for “the resistance. ”
Nevertheless, he was right on the law this time. Electors have a right to behave like arrogant, untrustworthy assholes, as do we all, within certain boundaries.