On December 16, the Tenth Circuit issued a 15-page opinion in Baca v Hickenlooper, 16-1482. The appeal had been filed by two of the electors who had said they planned to vote for someone other than Hillary Clinton. The U.S. District Court had denied them any relief.
Although the Tenth Circuit also denied relief, it made several statements that suggest that if the electors do indeed “disobey”, they cannot be removed as presidential electors. Page 12 says, “Whether the statute also affords that the State with authority to remove an elector after voting has begun is not a question that has been posed by plaintiffs to either the district court or this court.” Then footnote four, appended to this sentence, says, “And we deem such an attempt by the State unlikely in light of the text of the Twelfth Amendment.”
Also page thirteen says, “While we question whether that subsection provides the Secretary of State any such authority after voting has commenced, that precise question is not before us.”
Finally, footnote three says, “This is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs’ position”. It then quotes a 1952 U.S. Supreme Court opinion which says that elector freedom to vote for anyone who meets the constitutional qualifications is “implicit in the text” of the Constitution.
The decision is unsigned. The three judges who issued the order are Mary Beck Briscoe, a Clinton appointee from Kansas; Carolyn McHugh, an Obama appointee from Utah; and Nancy Moritz, an Obama appointee from Kansas.
I m not a constitutional lawyer, but I believe there is a precedent. In 1876, some of Tilden’s electors were removed and replaced by Hayes’. Two sets of electoral votes were sent to Congress from 3 states, and it was Congress who decided which to accept.
So, IMO, if “disobedient” electors who actually cast ballots are replaced with those who case the “legal” votes for the winning candidate in a state, then it will be up to Congress as to which votes to accept.
Congress has *judicial* power ONLY in election results for Congress hacks and impeachments.
The 10 circuit JUNK is one more EVIL example of MORON lawyers either NOT putting the alleged illegal acts/omissions in the COMPLAINT and/or the HACK judges not ruling on such alleged illegal acts/omissions.
i.e. legal malpractice — due to the SCOTUS hacks and their many JUNK election law cases.
1876 involved a dispute over the popular votes. It was a dispute as to which persons had received the most popular votes for presidential elector.
In 2016, there is no state with disputed popular vote totals for presidential electors.
The two are very different. Even the Colorado Secretary of State has already certified that the electors who are suing him were elected. He gave them a certification. There is no dispute as to who the electors are, right now.
The relevant state statute says:
“If any vacancy occurs in the office of a presidential elector because of death, refusal to act, absence, or other cause, the presidential electors present shall immediately proceed to fill the vacancy in the electoral college.”
Death or absence would likely occur prior to the meeting, but could potentially occur after the meeting began. But I don’t see how refusal to act could occur, except during the meeting. The electors could not fill a vacancy until they have taken the oath of office.
Can you interpret “refusal to act” as narrowly as refusing to cast a ballot at all? What if the elector casts a blank ballot? If there is 1st Amendment right of conscience then it would surely cover a blank ballot. But the 12th Amendment was passed after the 1st Amendment, so the Congress and States must not have considered requiring electors to name two persons as a violation of the First Amendment.
So then the only question is if naming two different electors than those which formed the basis of your appointment, and is clearly within the manner prerogative of the legislature is a failure to elect.
If a State can not enforce its manner elections, did it not engage in a misrepresentation to voters as to the meaning of their votes, and doesn’t that represent a disenfranchisement, subject to the apportionment clause of the 14th Amendment?
Perhaps Congress should reject any non-Clinton votes from Colorado, and reduce Colorado’s representation in the House.
@ Richard Winger
While the dispute in 1876 may have been over popular votes in 2 of the 3 states {I think there was a different issue in the case of Oregon’s electors), I think the principle is the same: when and how electors can be replaced. Under the current statute in Colorado, there seems to be ambiguity about what “refusal to act” means. If all the electors take their oaths, and then one disobedient elector votes for someone other than Clinton, is that elector “refusing to act”? You could have a situation where the disobedient elector actually casts his or her ballot,and then the other electors select a replacement elector, who then votes for Clinton. So, then, you have two different votes cast by two different electors. Who is the judge of which vote is valid? In 1876, Congress set up a commission, which then reported back to Congress which votes to accept, which they then ratified.
The CORRUPTION in the 1876 election lead to the abandonment of blacks in the southern States by the Elephants
— with most blacks becoming Donkey voters esp from 1932 onward.
— i.e. the current de facto civil WAR situation in such southern States between white Elephants and black Donkeys —
esp. since 1964.
All one more reason to ABOLISH the Super time bomb Electoral College.
Did such time bomb E.C. go off again in Nov 2016 ???
Stay tuned starting at noon on 20 Jan 2017 — i.e. the POWERMAD Trump brain/mouth.
“Refusal to act” means a failure to act. It refers to someone who does nothing. It doesn’t refer to someone who does act but who does so differently than expected. Bad weather in the past has kept some presidential electors from attending meetings of the electoral college. The states with severe winter weather have always had a need for replacements, chosen by the electors who did show up. Someone who doesn’t show up “failed to act.”
Oregon in 1876 involved a Republican postmaster who was elected to the electoral college. Both sides agreed he was not eligible, because he was a federal employee. The dispute was whether he should be replaced by the other Republican electors, or should the Democrat who received the most votes in the popular vote (compared to the other Democratic electors; they all received slightly different vote totals) take his place. Again, this dispute had nothing to do with how any elector behaved on electoral college voting day.
An elector who is not present, is absent.
Colorado statute covers both deceased electors and absent electors.
“refusal to act” must mean something else, and it must apply to an elector who is present and has taken the oath of office. Until that time he has no power to act.
Since the action required of an elector in Colorado is to vote for Clinton and Kaine, someone who takes another action is refusing to take the required action.
Oregon law unlikely had a faithless elector provision in 1876, since it did not have government-printed ballots.