1. Does a presidential elector lack standing to sue his appointing state because he does not have a constitutionally-protected right to exercise discretion when casting his electoral-college vote where the elector’s vote violated a state law binding electors to the state’s popular vote and caused the state to remove the elector from office and cancel his vote?
2. Under Article II or the Twelfth Amendment, is a state prohibited from forcing its presidential electors to conform to the state’s popular vote when casting their electoral-college ballots?
This case asks the Court to decide whether presidential electors can exercise discretion when casting their electoral votes for the President and Vice President, even if such votes are inconsistent with the appointing state’s popular vote and violate that state’s law binding electors to the state’s popular vote. For the 2016 general election, the Colorado Democratic Party appointed Michael Baca as one of its nine presidential electors. And when Hillary Clinton won the popular vote in Colorado, state law required Michael Baca to cast his electoral vote for her. Michael Baca, however, voted for John Kasich. Petitioner, the Colorado Department of State (“Colorado”), subsequently removed Michael Baca from office and cancelled his electoral vote. Colorado first argues that Michael Baca lacks standing to sue because he was not personally injured by his removal from office. And second, that Article II of the Constitution and the Twelfth Amendment empowers states to control their electors. Respondents, Michael Baca and two other electors (the “Electors”), counter that they do have standing to sue because their removal from office and cancellation of their vote constitute a concrete, personal injury. Further, the Electors assert that under the text and history of Article II and the Twelfth Amendment, they have discretion when casting their electoral vote. The outcome of this case has implications for the future of the electoral system, the meaning of the popular vote, and the likelihood of fraud and corruption.
Questions as Framed for the Court by the Parties
(1) Whether a presidential elector who is prevented by their appointing state from casting an electoral-college ballot that violates state law lacks standing to sue their appointing state because they hold no constitutionally protected right to exercise discretion; and (2) whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots.
In April 2016, the Colorado Democratic Party nominated Respondents Michael Baca, Polly Baca, and Robert Nemanich (collectively, the “Electors”) as three of the Party’s nine presidential electors. Baca v. Colorado Dep’t of State at 902. When Hillary Clinton and Tim Kaine won the popular vote in Colorado, the Colorado Democratic Party appointed the Electors as presidential electors for the State. Id.
Under Colorado law, presidential electors must vote for the winner of the State’s popular vote for President and Vice President. Id. at 901. Therefore, because Hillary Clinton won the popular vote in Colorado, state law required the presidential electors to cast their votes for her. See id. Nemanich then contacted Colorado’s Secretary of State to ask about the consequences of violating this law and voting for a nominee other than the winner of the State’s popular vote. Id. at 903. The Secretary of State, Wayne Williams, responded that Petitioner the Colorado Department of State (“Colorado”) would likely remove the elector and replace him with a faithful elector to ensure that their votes conformed to the State’s popular vote. Id. Moreover, Williams also cautioned that a faithless elector could face perjury charges. Id. Despite this warning, Michael Baca disregarded Colorado’s state law and voted instead for John Kasich based on concerns about foreign interference in the election. Id. Colorado’s Secretary of State responded by removing Michael Baca and discarding his vote. Id. at 902. He was replaced with a different elector who voted for Hillary Clinton. Id. After Michael Baca’s removal, Polly Baca and Nemanich also voted for Hillary Clinton despite wanting to vote for John Kasich instead. Id.
On December 6, 2016, the Electors sued Colorado in the United States District Court for the District of Colorado (the “District Court”). Id. at 903. The Electors brought suit under Section 1983 of the Civil Rights Act, alleging violations of their rights under Article II and the Twelfth Amendment of the Constitution. Id. Colorado responded by moving to dismiss the complaint. Id. The District Court granted the motion, determining that the Electors lacked standing to bring their claims. Id. Alternatively, the District Court concluded that the Electors failed to state a claim upon which relief could be granted. Id. The Electors appealed the District Court’s decision. Id.
The United States Court of Appeals for the Tenth Circuit (the “Tenth Circuit”) overturned the District Court’s decision in part. Id. The Tenth Circuit concluded that Michael Baca had standing to challenge his removal as an elector and the cancellation of his vote. Id. But, the Tenth Circuit upheld the District Court’s dismissal, for lack of standing, of Polly Baca’s and Nemanich’s claims. Id. The Tenth Circuit then addressed the merits of Michael Baca’s claims, determining that it was unconstitutional to remove Michael Baca as an elector and to cancel his vote. Id.
THE ELECTORS’ STANDING TO SUE
Colorado argues that Michael Baca, as a presidential elector, has no standing to sue because he is a subordinate state officer and has not suffered a personal injury. Brief for Petitioner, Colorado Department of State at 10–11, 14. Colorado explains that Article II grants states the power to appoint their electors “in such a Manner as the Legislature thereof may direct,” and the Fourteenth Amendment and the Twenty-Fourth Amendment place only minimal limits on who can serve as electors. Id. at 11, 13–14. Based on this text, Colorado asserts that states have a “plenary power” over their respective electors, making them subordinate state officials. Id. at 11–12. Similarly, Colorado argues that electors are lower state officials because they are paid by their appointing state—not the federal government—and perform their duties in their respective states—not in Washington D.C. Id. Moreover, Colorado also posits that the electors do not have standing to sue because their removal from office and cancellation of their vote did not cause a personal injury. Id. at 14. Colorado explains that standing requires an injury-in-fact which is defined as a concrete and particularized “invasion of a legally protected interest.” Id. Therefore, Colorado argues that no such injury occurred here as the electors were not fined or prosecuted. Id. The mere removal from office and cancellation of votes, Colorado posits, is “a loss of political power” not the “loss of a private right” and thus does not constitute an injury sufficient to confer standing. Id. at 15.
The Electors counter that Michael Baca, as a presidential elector, has standing to sue Colorado. Brief for Respondents, Presidential Electors at 53. They assert that Michael Baca experienced a personal injury sufficient to confer standing when Colorado rejected his vote, removed him from office, and referred him for perjury. Id. The Electors explain that Michael Baca’s removal from office constitutes an injury because he is personally entitled to the position after the people of Colorado elected him. Id. at 54–55. Furthermore, they contend that presidential electors have standing to sue their states because they are not subordinate state officials. Id. at 55. For instance, the Electors explain that presidential electors are not subordinate state officers because they are elected through “national elections.” Id. at 56. First, the Fourteenth Amendment, they contend, indicates presidential electors are elected through a national process. Id. at 41. For example, they note that the Amendment distinguishes between “the choice of electors for President” and elections for “executive and judicial officers of a state, or the members of the legislature thereof.” Id. This distinction, they assert, would not be necessary if presidential electors held a state office. Id. Similarly, they point to the Twenty-Fourth Amendment which banned poll taxes for federal elections, including elections for “electors for President or Vice President.” Id. at 41–42.
ELECTOR INDEPENDENCE UNDER ARTICLE II
Colorado argues that under Article II, states have the power to control their electors and bind their votes. Brief for Petitioner at 18. It explains that Article II does not expressly limit states’ ability to control their electors. Id. And absent an express limit, Colorado posits that the states’ power under Article II is “plenary,” “exclusive,” and “comprehensive,” making it the “broadest power” possible. Id. at 18–20. Colorado also asserts that Article II’s plenary power to appoint electors includes the power to remove them. Id. Based on the Constitution’s structure, Colorado asserts that the power to appoint must include the power to remove. Id. at 23. For instance, Colorado points to Section 3 of the Fourteenth Amendment which states that “[n]o person shall be . . . [an] elector of President and Vice President” if that person engaged in “insurrection or rebellion.” Id. Therefore, Colorado argues that even though the Constitution does not provide an explicit removal mechanism for electors, some mechanism must exist. Id. Similarly, Colorado posits that this removal power extends to all states, regardless of whether their state law binds electors. Id. at 24. Even in states lacking laws that bind electors, Colorado explains that the electors are still restrained, such as by residency or age requirements. Id. Therefore, Colorado asserts that without a removal mechanism, the states’ authority would be meaningless. Id.
Furthermore, Colorado counters the Electors’ assertion that presidential electors are analogous to federal senators. Id. at 28. It asserts that the Constitution’s text and longstanding practice indicate that such a comparison is inappropriate. Id. Colorado explains that the Constitution explicitly provides for a mechanism to replace federal senators, meanwhile the Constitution is silent regarding the removal of presidential electors. Id. This absence, Colorado contends, indicates that states have the power to develop their own processes for removing and replacing presidential electors. Id. Finally, Colorado looks to the Tenth Amendment as further support that states have power over their electors. Id. at 43. Colorado explains that the Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Id. Although Colorado acknowledges that the federal government reserves some control over federal elections, states keep broad powers under the Tenth Amendment to establish qualifications of its officers, including presidential electors. Id.
The Electors counter that Article II’s plain text, history, and structure prohibit states from controlling how electors cast their votes. Brief for Respondents at 17. First, the Electors argue that the Framers created the electoral college intending for the electors to act as “free agents” who could “exercise an independent and nonpartisan judgment . . . .” Id. at 19. Furthermore, the Electors note that although Article II grants states the plenary power to appoint electors, the term “appoint” does not automatically give states the power to control the appointed person. Id. at 19–20. For instance, the Electors point out that the President has the power to appoint federal judges under Article II but this does not include the power to control them, directly or indirectly. Id. And although the President has the power to remove inferior officers, the Electors emphasize that this power does not derive from Article II’s appointment clause but from the Take Care Clause—which requires the President to ensure that the laws are faithfully executed—and from Article II’s Vesting Clause—which vests the executive power with the president. Id. at 23.
The Electors also argue that the term “electors” itself indicates that they are entitled to discretion. Id. at 23–24. For instance, the Electors argue that at the time of the Founding, the term “elector” meant a person who had judgement and discretion. Id. at 24. Therefore, electors are different, they argue, from “agents” or “delegates” who “act on behalf of others but not on their own.” Id. Furthermore, the Electors also point to congressional electors who, under Article I of the Constitution, are appointed by the states. Id. at 25. The Electors explain that these congressional electors have discretion to choose members of the House of Representatives, and after the Seventeenth Amendment’s passage, to choose members of the Senate as well. Id. Similarly, the Electors contend that presidential electors should have discretion over their votes as well. Id. The Electors also emphasize that the use of the word “vote” implies the power to choose; it is not, they argue, the duty to “effectuate another’s preference.” Id. at 27. Similarly, the Electors contend that requiring electors to vote “by Ballot” also implies that they have freedom over the casting of their votes. Id. at 29. The Electors note that the Framers employed the use of ballots to ensure that electors had a “secure, reliable, and objective voting method . . .” in order to preserve their personal choice. Id. at 30–31. Therefore, the Electors contend that based on Article II’s wording, history, and precedent, presidential electors must be able to vote free of state interference. Id. at 31.
ELECTOR INDEPENDENCE UNDER THE TWELFTH AMENDMENT
Colorado asserts that the Twelfth Amendment—which allowed for partisan Electoral College voting—indicates that presidential electors must follow the voters’ will. Brief for Petitioner at 29. Colorado explains that with the advent of political parties, the electoral system rapidly became unworkable. Id. As an example, Colorado points to the election of 1800, where the Electoral College vote resulted in a tie and it took 36 rounds of balloting in the legislature to break it. Id. Colorado argues that the Framers felt the situation was “manifestly intolerable” and adopted the Twelfth Amendment to bind electors to their declared political party. Id. at 30. Colorado also contends that the Electors overlook this historical context and merely look to individual words in the text, such as “vote” or “ballot.” Id. But Colorado notes that the historical context is important as congressional debates regarding the Amendment evince that the legislature understood electors as “agents” used to express the people’s will and must vote according to the people’s will. Id. at 31–33.
The Electors counter that presidential electors independently casted their votes both before and after the Twelfth Amendment’s adoption as evidenced by several anomalous votes. Brief for Respondents at 32. As an example, the Electors point out that the Amendment’s drafters did not include a rule that binds presidential electors to the popular vote in the Amendment despite already dealing with anomalous votes. Id. Moreover, the Electors argue that the structure of the Twelfth Amendment prohibits states from interfering with presidential electors’ votes. Id. at 37. The Electors explain that the Amendment insulates electors’ independence by “excluding state officials from the electoral process.” Id. For instance, the Electors explain, the Amendment and the federal statutes implementing the Amendment directs electors to themselves complete the process of voting, excluding any involvement by state officials. Id. at 37–38.
In support of Colorado, the Colorado Democratic Party (the “Party”), which controls and selects the State’s democratic presidential electors, relies on the electors’ commitment to vote for the Democratic nominees should they win the State’s popular vote. Brief of Amicus Curiae the Colorado Democratic Party, in Support of Petitioner at 6. The Party asserts that there is a “bipartisan consensus” regarding presidential electors as both parties rely on electors to uphold their commitment. Id. at 6–7. This commitment, the Party emphasizes, is furthered by the fact that presidential electors must pledge to vote for the Democratic nominees should the Democratic nominees win the popular vote. Id. at 10. Disregarding this commitment harms voters, cautions the Party, because they expect their electors to conform to the State’s popular votes, not to have unknown electors independently casting their ballots. Id. at 14. Similarly, on behalf of several presidential electors, Mary Beth Corsentino, in support of Colorado, agrees with the Party, adding that elector independence would nullify the popular vote by condensing the “elector power of millions” into the control of a few. Brief of Amici Curiae Presidential Electors Mary Beth Corsentino et al., in Support of Petitioner at 11. Specifically, Corsentino contends that, on a national scale, granting electors independence would allow presidential elections to be decided by 538 individuals—approximately .00042 percent of all voters in 2016. Id. Therefore, this Court should not affirm a ruling, Corsentino asserts, that would ultimately ignore millions of Americans’ votes. Id.
Jerry H. Goldfelder, a lawyer and professor supporting the Electors, counters that presidential electors must retain discretion to ensure that the best presidential candidate is chosen. Brief of Amicus Curiae Jerry H. Goldfelder, in Support of Respondents at 8. He explains that between the time of the elector’s appointment and the Electoral College vote, the occurrence of a calamitous event or the release of new, compelling information about the candidates could require the electors to discretionarily cast their votes. Id. at 8. For instance, Goldfelder notes that a presidential candidate could die during this time, forcing the electors to vote with discretion. Id. at 8–9. Such an event happened, emphasizes Goldfelder, in 1872 when a presidential candidate died after election day but before the electors’ vote—and despite the candidate’s death, three electors still voted for him. Id. In support of the Electors, Vinz Koller, a California Democratic Party presidential elector in the 2016 presidential election, agrees with Goldfelder that elector discretion is necessary. Brief of Amicus Curiae Vinz Koller, in Support of Respondents at 11. Koller explains that six to seven weeks pass from the time presidential electors are appointed to when they cast their votes giving them ample “opportunity to learn and analyze information . . .” that could affect their decision-making. Id. at 11–13. For instance, Koller points out that he learned about the CIA’s conclusion that Russia attempted to influence the presidential election, and that Michael Baca developed “grave concerns” regarding Donald Trump and foreign interference. Id. at 13.
WILL ELECTORAL INDEPENDENCE RESULT IN CHAOS AND DISORDER?
The Eagle Forum Education & Legal Defense Fund (the “Fund”), in support of Colorado, argues that unbinding electors would lead to chaos and disorder as independence would allow fraud and corruption to flourish. See Brief of Amicus Curiae Eagle Forum Education & Legal Defense Fund, in Support of Petitioner at 6. The Fund cautions that electors’ appointments yield ample time for them to be “lobbied, pressured, and influenced” yet not enough time for the states to effectively investigate, prove, and eradicate any misconduct. Id. Also in support of Colorado, the Campaign Legal Center (“CLC”) agrees that elector discretion would add unnecessary chaos as unbinding electors would force states to reconfigure their electoral procedures and disseminate detailed information on the electors themselves. Brief of Amici Curiae Campaign Legal Center et al., in Support of Petitioner at 14. Such upheaval of states’ electoral procedures would be required, explains CLC, because voters would no longer merely be voting for the President and Vice President, but they would have to scrutinize the presidential electors to ensure that they cast ballots consistent with the voters’ will. Id.
Michael Rosin and other scholars, in support of the Electors, counter that granting presidential electors independence is consistent with historical practice. Brief of Amici Curiae Michael L. Rosin et al., in Support of Respondents at 26. Rosin explains that Congress has always counted anomalous votes, indicating that elector discretion would not lead to chaos nor disorder. See id. As an example, Rosin notes that in the nineteenth century, electors voted anomalously for President at least four times and for Vice President at least eight times—with Congress counting all such votes. Id. at 26–27. Also in support of the Electors, the Making Every Vote Count Foundation (“MECV”) agrees, adding that binding electors could force states to replace every elector that casts an anomalous ballot. Brief of Amicus Curiae Making Every Vote Count Foundation, in Support of Neither Side at 7. This practice, MECV emphasizes, could be costly to states as they would have to amend or reassess their laws. Id. Therefore, MECV asserts that regardless of this Court’s decision, states will be forced to make changes resulting in uncertainty and disorder—especially with the impending 2020 presidential election. Id. at 6–8.
- Adam Liptak, Supreme Court to Hear Timely Case on Electoral College Voters, The New York Times (Jan. 17, 2020).
- Trip Gabriel, Electoral College Members Can Defy Voters’ Wishes, Court Rules, The New York Times (Aug. 22, 2019).
- Tal Axelrod, Appeals Court Says Colorado Electors Don’t Have to Vote for Winner of State’s Popular Vote, The Hill (Aug. 21, 2019).