What You Need to Know About Faithless Electors

On January 17, 2020, the Supreme Court of the United States announced that it would hear arguments in Colorado Department of State v. Baca. The case dates back to the 2016 presidential election and who the Centennial State’s electors voted for (or wanted to vote for) that year. The ensuing litigation has spanned administrations: Then Secretary of State Wayne Williams has been replaced by Jena Griswold and Jared Polis now sits in the governor’s office. So after all this time, why are people still talking about the case? Here’s what you need to know:

What is a faithless elector?

Let’s start with a quick civics lesson (in case you don’t quite remember that high school class). When you cast your ballot in a presidential election, you pick a candidate. But you’re really casting your vote for the state’s electors, a group of people selected by the state’s political parties to represent Colorado in the Electoral College.

“The Electoral College is an institution established in the Constitution, by the original framers of the Constitution, as the means by which we choose the president rather than direct vote,” says Richard Collins, a professor at the University of Colorado Law School. The Electoral College is made up of 538 electors and a presidential candidate needs 270 votes to win. If no candidate meets that threshold, the Constitution dictates that the U.S. House of Representatives selects the victor.

The number of electors varies and is based on a state’s representation in the U.S. House of Representatives and the U.S. Senate. Colorado has nine electors (for now, although the 2020 census might change that). The state’s political parties identify a slate of electors before the November election, and when a candidate wins the most votes in Colorado, their party’s electors are selected. So, when Hillary Clinton won Colorado in 2016, the Democratic Party’s electors were tasked with casting the Centennial State’s votes in the Electoral College.

Many states have rules about how electors must vote, including requiring an elector to pledge—or bind—their vote to the candidate who won the state. “The reason they did that is it gives the state more power in the electoral college because the votes go in as a block,” says Collins. Faithless electors are people who don’t follow that pledge or binding vote requirement. In short, they go rogue.

Why are we talking about this now?

After the 2016 general election, there was plenty of talk about what electors could do to sway the result by casting their votes for other candidates and forcing the election to go to the U.S. House of Representatives. In Colorado, in the short amount of time between the general election and the electoral college vote, some electors—including former state legislator Polly Baca—went to court to ask for an injunction in order to cast their vote for someone other than Clinton, who won the state. The court denied the request.

On December 19, 2016, electors assembled in Denver at the Capitol to cast their votes for the state’s victor, but things didn’t go according to plan. Two electors had previously indicated they might cast their vote for someone else, but ultimately took the pledge and voted for Clinton. One elector, Micheal Baca (no relation to Polly Baca), took the pledge and tried to vote for John Kasich, the Republican governor of Ohio. As a result, then-Secretary of State Wayne Williams removed Baca as an elector and declined to take his ballot.

Baca was replaced, lawsuits ensued, and the case worked its way through the legal system. On August 20, 2019, the United States Court of Appeals for the 10th Circuit reversed a lower court’s decision, writing: “[W]e conclude the state’s removal of Mr. Baca and nullification of his vote were unconstitutional.” Current Secretary of State Jena Griswold says the ruling “shocked everyone.”

Has this happened before?

While most electors have stuck to the rules, this isn’t the first time that faithless electors have appeared. “There were more than 150 electors in our history who voted against their expectation or their pledge,” says Jason Harrow, chief counsel and executive director of Equal Citizens, a nonprofit representing Colorado’s faithless electors in the Baca case. “Congress accepted every one of them. Every one.”

What made 2016 unique was the number of faithless electors—and how the resulting legal cases developed. In Washington state, a similar situation occurred where faithless electors cast votes and were fined $1,000 for doing so. That case also wound its way through the court—the electors were represented by Equal Citizens—to a different result: The Washington Supreme Court ruled that the fines were constitutional.

Why is the Supreme Court getting involved?

On October 16, 2019, Griswold and Colorado Attorney General Phil Weiser filed a petition for writ of certiorari to the Supreme Court, asking them to hear Colorado’s case before the 2020 election. “We thought it was urgent to ask the Supreme Court to decide this,” Griswold says. One of the key questions posed in that document is: “Do Article II or the 12th Amendment forbid a state from requiring its presidential electors to follow the state’s popular vote when casting their Electoral College ballots?”

Just over a month later, on November 20, 2019, 22 other states sent an amicus brief urging the court to take up the issue. The Washington electors had also asked the Court to hear their case. On January 17, 2020, the Supreme Court consolidated the cases and agreed to look at both. It is likely that arguments will be heard in April and that the court will issue a decision before its summer recess (although that could change).

For Colorado, it will be another chapter—perhaps the final one—in a story that is nearly four years old. “[This] started under Secretary Williams and will end, one way or another, under me,” Griswold says. “If the 10th Circuit decision were to stand, we suddenly have unelected electors breaking state law and undermining, or potentially undermining, every Colorado voter.”

Equal Citizens will continue to represent the state’s faithless electors. Harrow says that the constitution allows electors to make individual decisions and “vote for whatever person they think is best qualified.” Additionally, he says that the Supreme Court can clarify discrepancies between the rulings in the two cases. “This issue, for whatever weird historic reasons, has gone unresolved.”

Without clarification, faithless electors could have impact on future elections, says Robert Hardaway, a professor at the University of Denver’s Sturm College of Law, who filed an amicus brief in the case. He says that faithless electors could be bribed or coerced and create a “constitutional crisis.” In his brief, he wrote: “Answering this question now, when the 2016 presidential election is settled and the issue is ripe and one of pure legal interpretation, preserves the Constitution and prevents strain to the pillars of this federalism.” (Griswold is also working on legislation during this year’s session that focuses on elector corruption.)

What happens next?

In short, there will be plenty to talk about when the Supreme Court hears arguments. As for what happens then, we don’t know. The Court will do what the Court does. What is likely is that this decision will not resolve questions about the National Popular Vote. You might remember that the state legislature passed a bill to join the National Popular Vote Interstate Compact in 2019 (if enough states sign on, Colorado’s electoral votes would be bound to the winner of the national vote). And you probably saw that you’ll be able to vote on that in the 2020 election.

Nor will a Supreme Court decision likely stop debates about the Electoral College’s role in modern politics. But it could create a clear rule on faithless electors. “This is an important issue that is going to come up again,” says Collins. “This decision just needs to be in place before the election.”

Dear reader: As a bonus for sticking with me this long, let me remind you that you’ve got another chance to learn about electoral college history when the Tony-award winning Hamilton musical returns to the Mile High City. The play is based on the life of Alexander Hamilton, who helped write the Federalist Papers and made the case for the Electoral College. General public tickets go on sale on April 20.