The Right To Be Unethical: The 10th Circuit Allows “Faithless Electors”

This is professor Larry Lessig. Is it unfair of me to believe that this particular pose is signature significance for a pompous ass? Nobody in the history of photography who wasn’t pompous  posed this way, Lessig has several pictures like this.

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.

21 thoughts on “The Right To Be Unethical: The 10th Circuit Allows “Faithless Electors”

  1. Doesn’t this ruling enable to people to violate their oath/pledge? In our current virtue signaling political climate, what could possibly go wrong with that.

    Is this an unexpected loophole that will likely be exploited by unscrupulous people.

    What if the Republicans were to find a way to stack the deck of electors in California with electors that will vote for the Republican Party candidate instead of Democratic Party candidate no matter what the voters choose at the polls?

    In a very, very close election, it could easily come down to one electoral vote to flip the outcome.

  2. What if the Republicans were to find a way to stack the deck of electors in California with electors that will vote for the Republican Party candidate instead of Democratic Party candidate no matter what the voters choose at the polls?

    That would likely be some search!

    I don’t know the rules in California, but I can tell you that in Maine Electoral College members are selected at the State Conventions of the parties. Those slots are typically granted to wizened old activists who have paid their party dues. So Maine, with four electoral votes, actually heads into a POTUS election with a dozen or more possible EC delegates (four each from the Dems and Republicans, and more from the fringe parties). The actual appointment is contingent on outcome.*

    If the rules are similar in California, those dastardly Republicans would have to spend years undercover as party apparatchiks.

    *Maine is one of only two states that doesn’t demand all EC votes go to the same POTUS candidate; the First and Second Congressional districts sometimes split so a 3-1 EC vote can happen, as it did in 2016, when the Second District voted for Trump. He got one EC vote from Maine accordingly.

      • Or bribe, or corrupt through the use of false information. In CA and other large states, the honor of being a electoral college voter is 55 people every 4 years, and seems to always come from the Democrats. So…there’s a fair share more than the 3 or 4 that Maine has to fill. They use it as an “honor” not just for big donors, but I think for victims and survivors of some tragedy (i.e. Gun Violence, Human Trafficking, etc.)

  3. I wonder what would happen if electors were forced to vote the way the Congressional district voted.

    It would be interesting to evaluate the 2016 election and award electoral college votes based on how the vote went by Congressional district. I have a feeling that the heavily concentrated cities would have some serious issues with that.

    • That’s not a clean solution as 100 of EC voters are due to “Senators”. i.e. Wyoming only has 1 congressional district (The whole state) and 2 Senators. That = 3 EC votes.

    • 1) If you did 2 EC votes based on how the State overall voted;
      2) The rest broken up by House district on the assumption that the House district in general voted for President the way they voted for Representative
      3) Without considering districts that may have voted majority for a Third Party (because I don’t have the time to look at this)

      Then, the EC break down ends up being 301 for Trump, 237 for Clinton. Not far from the actual results which were 304 Trump, 227 Clinton, 7 for other candidates.

      • Michael
        Many thanks for your work compiling the data. I didn’t even know where to look for district by district vote.

        • Well, I didn’t look at individual districts. One of my assumptions was that if a house district when Republican, that district also went Trump…and if it went Democrat, the district went Clinton. So I just used the make up of the House of Representatives after the 2016 election.

  4. One way to avoid this problem is for states to make sure their electors aren’t arrogant, undemocratic whack-jobs….states to make sure their electors…their electors

    This line made my head want to explode… Electors are selected by political parties and elected by popular vote, they are not “the states” electors they are a political parties electors.

    Who selects the Electors?
    Choosing each state’s Electors is a two-part process. First, the political parties in each state choose slates of potential Electors sometime before the general election. Second, on Election Day, the voters in each state select their state’s Electors by casting their ballots for President.

    https://www.archives.gov/federal-register/electoral-college/electors.html

  5. I’ll silver lining this ruling for you: Progressive state legislators have started to percolate the idea of legally requiring electors to vote for whomever wins the *national* popular vote.

    This would be hilarious in states like California if a Republican won the national vote, but for most of the time, it would allow states like California to put their thumb on the scale and mitigate against the electoral college, especially in purple states where the legislature might be able to pass these “progressive” laws, but their unwashed proletariat might not vote correctly.

    What’s unfortunate about this is that the Republicans are almost always the beneficiaries of a popular/EC split, and so this is functionally partisan…. Even if it shouldn’t be. I mean, if Democrats hadn’t written off rural “fly-over” areas, then maybe a system designed to protect against regional candidates wouldn’t so adversely effect them.

    • I’ve been harping against National Popular Vote for a while simply because I see the slippery slope.

      Step 1: Obligate EC voters based on the National Popular Vote
      Step 2: Get NY or CA or Both to find a way to keep the republican nominee off their state’s ballot
      Step 3: [There is no step 3]

      Luckily, we have some good citizen activists in CO that has submitted signatures to put the NPV law (that was passed by our 100% democrat state government) onto the ballot for a voter decision.

        • How so? This court ruling simply means that the party picking the electors need to be very careful who they select. If NPV goes into effect (If/When the coalition reaches 270 EC Votes) that just means the NPV will decide which party in Colorado gets to pick the electors rather than the State Popular Vote.

          • The ruling, as I read it, says the States can appoint the electors. Beyond that, the States have no control. Thus, the States cannot require them to vote in any specific way. After being appointed, the Electors are free to vote their consciences. By-the-bye, the Parties do NOT pick the Electors, the States do. The Constitution makes NO mention of political parties.

            • Almost.

              Regardless of the fact that the Constitution makes no mention of parties, the reality is that the state parties pick the electors for their parties. In most states, the electors who align with the prevailing party’s presidential in that state get to vote in the EC.

              • I get that, Arthur. All I’m saying is, based on this ruling, CO cannot REQUIRE the appointed electors to vote as the popular vote goes. Once they are appointed, they can vote for whomever they choose.

                • …and commit suicide approximately seven seconds later, at least where socialists make these rules.

                  Amazing the number of electors that would die in ‘muggings gone wrong’ that leave their wallets in their pockets.

                • Yeah – I guess I was stumbling on your use of the word “Negated”. Yes, this ruling has an “impact” on NPV – but I think reality will give us a different practical experience. The court ruling means that the nominated electors by the political parties will be more carefully chosen.

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