Federal Court: State Cannot Bind Presidential Electors

Ruling could impact liberal efforts at Electoral College workaround

Colorado governor Jared Polis / Getty Images

A panel of federal judges with the 10th U.S. Circuit Court of appeals handed down a 2-1 ruling saying the state of Colorado was wrong in 2016 to force a presidential elector to cast his vote for Hillary Clinton in the Electoral College.

State law in Colorado mandates that presidential electors cast their Electoral College vote for the candidate receiving the most votes statewide, which in that instance was Hillary Clinton.

In 2016, however, elector Micheal Baca tried to cast his vote for Ohio's then-governor, Republican John Kasich, as part of a short-lived movement to circumvent Trump's election in a kind of compromise. Supporters of the idea hoped enough electors would defect to Kasich to deny Trump the presidency — arguing Trump was too unstable or dangerous — but would still have given Republicans control of the executive branch rather than handing that power to Democrats.

When Baca cast his vote for Kasich, then-secreatary of state Wayne Williams (R.) removed and replaced Baca with an elector who voted for Clinton.

"Secretary Williams impermissibly interfered with Mr. Baca's exercise of his right to vote as a presidential elector," part of the court ruling read. "Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote binding provision."

"Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion," the majority ruling added.

The decision effectively gives legal permission in any state to so-called "faithless electors," those who vote for someone other than the leading vote getter in the state or otherwise does not vote in coordination with the statewide election results.

Heightening the importance of the ruling is the fact that just this spring Colorado passed a law entering the state into the National Popular Vote Interstate Compact, or NPV, which attempts to create a workaround to how the Electoral College has operated for two centuries, but would not require a Constitutional amendment.

In nearly all circumstances historical or present, electors cast their Electoral College vote for the candidate who receives the most votes in that state in a winner-take-all allocation.

The National Popular Vote, however, is an agreement of the states that have adopted the compact to cast their Electoral College votes for the candidate who receives the most votes nationwide, even if citizens of that state voted for a different candidate.

The NPV does not have any legal effect until enough states have joined that their electoral votes surpass 270, the amount needed to elect the president. Fifteen states and the District of Columbia have joined the compact for a total of 196 Electoral College votes.

Colorado secretary of state Jena Griswold told the Colorado Sun the ruling could hamstring the NPV, noting that the mandates of how the electors should vote under the NPV could be ignored.

In the months since the Colorado General Assembly passed NPV legislation that Governor Jared Polis (D.) then signed into law, a citizens' group submitted more than 227,000 signatures in an effort to force a referendum vote on the NPV in November of next year.

Those signatures are still undergoing a certification process with the secretary of state's office. If roughly 125,000 signatures pass muster, the question will be placed on the ballot, creating the first real citizen-led test of the NPV.

Until now, state legislative bodies have passed all NPV legislation without any challenge from citizens in their respective states.