Judge Rules Members of Electoral College Must Follow Popular Vote

Colorado law mandates electors must represent how the state voted

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April 10, 2018

A federal judge dismissed a case in which three members of the Electoral College from 2016 challenged a Colorado law requiring them to cast their vote for president to represent the state's popular vote winner.

Three Democratic members of Colorado's nine-person delegation to the 2016 Electoral College sued the Colorado secretary of state when he insisted that their votes go to Hillary Clinton after the results of the 2016 election in which she won more votes in the state than Trump.

At the time, the so-called "faithless" electors were not trying to change their vote from Clinton to Trump, but were hoping to spark a trend in which electors for Clinton from other states would instead cast all of their votes for John Kasich in an attempt to deny victory to Trump but still leave a Republican as the president.

Kasich, however, dismissed the idea.

The strategy also relied on the idea that some electors from the states that voted for Trump might defect to their cause. Even if the electors couldn't muster an outright Electoral College victory for Kasich, they hoped to knock off enough votes from Trump to put his total beneath 270, which would have then moved the responsibility for the election to the House of Representatives.

The electors argued that the state law that requires them to follow the popular vote interfered with a federal process, which is silent on the matter of whether electors are free to follow their conscience or if they can be bound in some way to reflect the vote of their respective state. The group asked the judge to strike down Colorado's law, "and to sanction a new system that would render the people's vote merely advisory."

U.S. District Court Senior Judge Wiley Y. Daniel rejected the request, saying that the plaintiffs lacked standing, among other factors.

The advocacy group Equal Citizens, founded by Harvard law professor Lawrence Lessig, backed the suit and was counsel for the plaintiffs.

"We disagree strongly with Judge Daniels' opinion, which ignores both binding precedent and the compelling evidence that the Framers of the Constitution intended presidential electors to be able to exercise independent judgment in casting their votes for President of the United States," Jason Harrow, chief counsel for Equal Citizens said in a statement. "But this decision is only the first word in our case, not the last, and it's the last that ultimately matters. On to the Court of Appeals."

One of the three persons who brought the suit, Michael Baca, did try to cast his vote for Kasich on the appointed day, but upon doing so, was immediately replaced by an alternate elector chosen by Colorado Secretary of State Wayne Williams. The two others cast their votes for Clinton, as required.

The 2016 presidential vote saw successful votes from other "faithless" electors. In Texas, for example, one elector cast a vote for Ron Paul, while another cast a vote for John Kasich, according to the Austin American Statesman.