On August 20, the Tenth Circuit ruled 2-1 that presidential electors have the constitutional right to vote for anyone who meets the constitutional qualifications to be president. Baca v Griswold, 18-1173. This is the first time any court has made such a ruling. The decision is 117 pages and the dissent is seven pages. Here is a newspaper story about the decision.
The decision says, “Article II and the 12th 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 dissent does not disagree, but says the case is moot. The decision is by Judge Carolyn B. McHugh, an Obama appointee. It is also signed by Judge Jerome Holmes, a Bush Jr. appointee. The dissent is by Judge Mary Beck Briscoe, a Clinton appointee.
The case was filed by three Colorado Democratic presidential electors from the 2016 election. One of them, Michael Baca, refused to vote for Hillary Clinton even after the Secretary of State, Wayne Williams, warned him that if he didn’t recant, he would be removed as an elector. The other two plaintiffs had also initially said they would not vote for Hillary Clinton, but then yielded to the demand of the Secretary of State. Their motive was not that they had anything against Hillary Clinton. Instead, they were trying to show the nation that our Constitution gives discretion to presidential electors. The state may have the ability to decide how to choose electors, but it doesn’t follow that the state can then tell them how to vote. It is now quite likely that the U.S. Supreme Court will decide this issue. Besides this case, there is also the case in the Washington State Supreme Court in which that court ruled 8-1 that electors can be fined for not voting for the expected presidential candidate. That case is already headed for the Supreme Court, with a cert petition due soon. That case is Guerra v Washington, 19A138.
The decision says that only Michael Baca has standing. He is the elector who refused to give in to the Secretary of State. The other two, because they yielded, do not have standing.
If the U.S. Supreme Court agrees with the Tenth Circuit, and finds that electors do have discretion, it is likely that a constitutional amendment to alter or replace the electoral college will be enacted. Another consequence would be that “sore loser” laws could not be applied to presidential candidates, because it would now be apparent that the true candidates in November are the candidates for presidential elector, not the presidential candidate. And the presidential electors wouldn’t be “sore losers”.
For those who listened to the oral argument in the Tenth Circuit back on January 24, 2019, this outcome is not too surprising. It seemed apparent at the oral argument that there was one vote on each side, with little indication of how the third judge was leaning. Here is a link to the 33-minute oral argument.