Twenty-two other states have filed a court brief in support of Colorado’s “faithless elector” case, asking the U.S. Supreme Court to review and reverse the decision of the 10th Circuit Court of Appeals.
The Constitution’s delegation of powers to the states is “sufficiently open-ended to allow conditioning service as an elector on a pledge to support the nominees of the presidential ticket that won the state’s popular vote,” they wrote.
Baca vs. Colorado Department of State stems from the 2016 election, in which Democratic presidential nominee Hillary Clinton won the statewide vote. However, one member of Colorado’s electoral college, Micheal Baca, tried to cast his vote for Ohio’s then-governor, Republican John Kasich.
Then-Secretary of State Wayne Williams removed and replaced Baca as an elector, per state law that binds electors to the results of the statewide vote. In August, a three-judge panel sided with Baca.
“Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to voters' choices and state law,” said Secretary of State Jena Griswold on Wednesday.
A presidential ticket needs 270 electoral votes nationally to win. While the winner typically receives the most popular votes too, the elections of 2000 and 2016 were exceptions.
The General Assembly this year passed the "National Popular Vote Compact," entering Colorado into a coalition of states representing 196 electoral votes that would agree to bind their electors to the winner of the national popular vote.
Opponents collected enough signatures to prompt a referendum of the law on next year's ballot.
South Dakota, one of the signatories to the Nov. 20 amicus curiae brief, has a longstanding tradition of electors casting their votes for the presidential ticket that won the most votes in the state.
However, given “increasing polarization” and rising numbers of faithless electors, “South Dakota must now consider whether to join the ranks of states which bind their electors by law to their party’s nominee,” the brief reads. One faithless elector in the state would affect one-third of the state’s three electoral votes.
The state attorneys general argue that the country's founders purposefully had no one design for the electoral college, leaving it up to states. Furthermore, states can replace electors who die or move out of state, so it follows that regulating faithless electors falls within their authority.
Whatever the final verdict, the attorneys general asked the Supreme Court to take up the case quickly, given the proximity of the next presidential election and the fact that the August ruling applies only to the states in the 10th Circuit.
“The lower court’s decision may rally more electors to cast faithless ballots in future elections, potentially causing disputed outcomes,” they wrote.