Baca case in high court
An attorney for Micheal Baca, a former Colorado member of the Electoral College, told the U.S. Supreme Court this week that the state of Colorado unconstitutionally violated Baca’s right to vote for the presidential candidate of his choice in 2016, calling it an act without precedent in American history.
The state’s punishment of Baca, if it stands, would allow state governments to stop the Electoral College from electing candidates who have not released their tax returns, not visited the state, or who support policies the state government opposes, argued the attorney, Lawrence
Lessig of Harvard Law.
“A state’s power to appoint electors does not grant it the power to control or remove appointees,” he wrote in a legal brief Monday.
On April 28, justices will hear arguments in two cases regarding so-called faithless electors, members of the Electoral College who do not vote in accordance with their state’s popular vote totals. In 2016, Baca crossed out the name of Hillary Clinton, Colorado’s pick for president, and wrote in John Kasich as part of a quixotic and unsuccessful effort to block Donald Trump from becoming president.
Baca was removed from his post, a punishment later deemed unconstitutional by the 10th Circuit Court of Appeals. In the state of Washington, several electors were fined for a similar maneuver, a punishment upheld by that state’s top court. Given the dis
connect between the two rulings, the U.S. Supreme Court agreed to hear the cases. The court could issue its opinion this summer.
The state of Colorado, represented by the attorney general’s office, has not yet filed its legal brief with the Supreme Court.
In his brief Monday, Lessig often cited the Constitution and American history. There were more than 180 instances of electors voting against their state’s wishes — what Lessig calls “anomalous electoral votes” — without punishment until 2016, he told the Supreme Court. In 1968, for example, an elector chosen to support Richard Nixon voted instead for George Wallace. The matter was debated in Congress and it was determined the vote for Wallace should count.
“Voting is the core act of discretion and free judgment on which our system of constitutional government depends,” Lessig wrote, adding that Electoral College voting “may not be controlled by a state.”
Lessig compared electors to federal judges. Just as a president has the power to appoint federal judges but not the power to control their actions, states have the power to appoint electors but not control them. He also compared electors to members of a jury, who cannot be punished for convicting or acquitting.
“Presidential electors have always operated as a kind of national jury system — expected to follow instructions from the voters at large, but with unreviewable discretion not to do so,” Lessig wrote. “Until a constitutional amendment changes the process of election, that is how it must be.”
Attorney General Phil Weiser and Secretary of State Jena Griswold, the state’s top election official, see it differently. Members of the Electoral College — unelected and unaccountable — should not be able to decide a presidential election by disregarding the will of voters, they say.
In an October court filing, Weiser wrote that the Constitution allowed for the removal of electors when it granted states the power to appoint electors in whichever manner states see fit.
“By broadly empowering the states to choose the ‘manner’ in which electors are selected, the Constitution permits the states to attach conditions to their appointment,” Weiser wrote to justices.