On November 20, the National Conference of Commissioners on Uniform State Laws filed this amicus brief in Colorado Department of State v Baca, asking the U.S. Supreme Court to hear the case and reverse the Tenth Circuit.
The Uniform State Laws has been working since 2010 to persuade states to pass laws to fire presidential electors who don’t vote for the presidential candidate who received the most popular votes in their own state.
Two law professors have each filed an amicus brief in Colorado Department of State v Baca.
Here is the amicus of Law Professor Robert M. Hardaway, who says the Tenth Circuit decision is wrong.
Here is the amicus of Law Professor Michael T. Morley, who says the U.S. Supreme Court should summarily rule that the Tenth Circuit opinion is void because it had procedural flaws. That would leave the issue of disobedient electors unresolved.
On November 20, twenty-two states filed an amicus brief in Colorado Department of State v Baca, asking the U.S. Supreme Court to take the case and rule in favor of the state of Colorado.
The brief says that the voters did not elect Michael Baca, the Colorado presidential elector who was replaced in December 2016 when he refused to vote for Hillary Clinton. This is not a true statement. The Colorado November 2016 ballot said, “Vote for presidential electors”, and then listed the various presidential candidates.
Ironically, this brief was organized by the Attorney General of South Dakota, and South Dakota is one of the few states that prints the names of presidential elector candidates on its November ballot. They are listed underneath the name of the presidential candidate that they are pledged to.
The states that signed this brief are Alaska, Arizona, California, Delaware, Illinois, Indiana, Louisiana, Maryland, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, and West Virginia.
Presumably the authors of the amicus asked each state to sign, so it is interesting that 28 states did not sign, nor the did government of the District of Columbia.
On November 20, Michael Baca submitted this brief to the U.S. Supreme Court in Colorado Department of State v Baca, 19-518. This is the case on whether presidential electors are free to vote for any qualified candidate when they cast a vote in December in the electoral college.
Even though Baca won this case in the Tenth Circuit, his brief asks the U.S. Supreme Court to hear the appeal filed by his opponent, the Colorado Secretary of State. It is very unusual for both sides to ask the U.S. Supreme Court to hear a case. Generally the side that won in the court below asks the Court not to take the case. It would be extraordinary if the Court refuses to hear this case, given that both sides want it heard.
In January 2016, a professional petitioner who wanted to work in Pennsylvania, for presidential primary candidates, filed a lawsuit to overturn the requirement that he must be a Pennsylvania resident in order to circulate such petitions. Benezet v Cortes, m.d., 1:16cv-74.
Pennsylvania already lets out-of-state petitioners work on general election petitions, but says out-of-state circulators can’t work on primary petitions because that would violate the freedom of association of the two major parties. The case is now almost four years old and is still awaiting a decision from U.S. District Court Judge Yvette Kane. She was Secretary of the Commonwealth before she was a federal judge, so she is very familiar with election law.
