22 states sign amicus brief in Colorado's request for SCOTUS review of 'faithless electors' decision

jena griswold phil weiser faithless electors.jpg
Posted at 5:03 PM, Nov 20, 2019

DENVER – Twenty-two states on Wednesday signed an amicus brief in support of Colorado’s request to the U.S. Supreme Court to review the 10th U.S. Circuit Court of Appeals’ August ruling in the “faithless electors” case.

Colorado petitioned the nation’s high court to review the ruling in October. In August, the appeals court ruled, in a 2-1 decision, that Colorado’s presidential electors do not have to follow state rules and vote for the presidential candidate who receives the most votes in the state.

Both Colorado Secretary of State Jena Griswold and Attorney General Phil Weiser called the appeals court’s ruling a “threat” to democracy and states’ rights as they are outlined in the U.S. Constitution.

“What this case represents is a threat to a shared understanding of how our democracy works,” Weiser said at the time.

“Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to voters' choices and state law,” Griswold said this week.

Signing on to the amicus curiae brief – a friend of the court brief – on Wednesday were the attorneys general of Alaska, California, Illinois, Mississippi, Maryland, Nevada, Louisiana, Oklahoma, Arizona, New Mexico, Indiana, Nebraska, Ohio, Delaware, West Virginia, Virginia, South Carolina, South Dakota, North Dakota, Montana, Tennessee, and Rhode Island.

The argument from the states, according to the brief, is: “If it is constitutional to exact a pledge to support a party’s nominee as a condition of serving as an elector, it necessarily follows that there is some constitutional means of enforcing that pledge. Mechanisms adopted by states for enforcing such pledges are by no means incompatible with their broad authority and functions under Article II, Section 1 of the United States Constitution. The lower court arrived at its decision to invalidate Colorado’s binding statute by interpreting Article II, Section 1 too restrictively, and overlooking the Electoral College’s historical role as the voice of the states and their electorates.”

The case stems from an ordeal during the 2016 election , when three of the state’s nine electors attempted to vote for John Kasich instead of Hillary Clinton, who won the popular vote in Colorado that year.

Micheal Baca , Polly Baca and Robert Nemanich had all threatened to vote for Kasich as part of a “Hamilton electors” movement across the country whose supporters argued the U.S. Constitution did not bind state electors to vote for a certain candidate. They had pushed for the Electoral College to put someone in the White House other than Donald Trump, who eventually won 270 electoral votes on Election Day.

Then-Secretary of State Wayne Williams threatened to remove and replace all three if they decided to do so. But only Micheal Baca carried through with the threat, and he was removed and replaced as an elector on the day Colorado certified its votes.

Polly Baca and Nemanich – after several last-minute court decisions – ended up writing Clinton’s name on the ballot. The three fought the ordeal in court.

In August, the 10th Circuit ruled that the U.S. Constitution contains no language that allows a state to remove an elector or toss out his or her vote.

Weiser and Griswold said in October that since both the state and the electors would like to see the case go to the Supreme Court, and since a Washington Supreme Court decision differs, they said they felt confident that the court would take up their appeal.

There is hope on both sides of the argument that the court takes up the case and has a decision by next summer – ahead of next year’s General Election.

Griswold said in a statement Wednesday that the amicus brief showed the urgency of the issue.

"Having twenty-two states support our petition to the U.S. Supreme Court underlines the urgency of this matter,” Griswold said. “When Americans vote in the presidential election, we are exercising our most fundamental right – the right to self-governance and self-determination. We have to preserve that right. Without swift action by the Supreme Court, the foundation of our democracy is at risk.”