On April 10, U.S. District Court Judge Wiley Daniel, a Clinton appointee, issued an opinion in Nemanich v Williams, 1:17cv-1937. He said that Colorado’s Secretary of State did not violate the U.S. Constitution when he replaced a Democratic presidential elector who was unwilling to vote for Hillary Clinton and who attempted to vote for John Kasich. The issue is whether presidential electors are free to vote for anyone in the electoral college, or whether they must vote for the person who got the most popular votes in their state.

Judge Daniel first said that none of the three presidential electors who filed the lawsuit have standing. Generally, when a judge finds that the plaintiffs lack standing, it is considered improper for the judge to then go on and imagine they do have standing, and make a ruling on the merits. But Judge Daniel proceeded to write that even if they did have standing, Colorado’s Secretary of State was correct. For the most part, he based his opinion on a 1952 case, Ray v Blair. The U.S. Supreme Court in that case upheld an Alabama law that let political parties keep presidential electors off their primary ballots if they wouldn’t take a pledge to support the party’s nominees in the electoral college, should they be elected.

Ray v Blair does not settle the current case, because Ray v Blair is a case about the rights of political parties to control who runs in their primaries. Back in 1952, the Alabama Democratic Party chose its presidential elector candidates in a primary, something no state does currently.

Parts of Ray v Blair suggest that presidential electors are free to vote for anyone they wish in December in the electoral college, but Judge Daniel said that is just dicta.

He also suggested that the Twelfth Amendment gives states authority to bind their presidential electors, but the Twelfth Amendment, which took effect in 1804, only tells presidential electors to vote separately for president and vice-president.

It is not surprising that Judge Daniel ruled as he did, because he showed the same attitude in December 2016 when he denied injunctive relief. It is presumed that the plaintiffs will appeal to the Tenth Circuit, which was more favorable to them in 2016. The Tenth Circuit had noted that in Ray v Blair, the U.S. Supreme Court had said that elector freedom “is implicit in the text of the Constitution.” Thanks to Tony Roza for this news.