DENVER — The nine people who are picked to cast Colorado's electoral votes don't have to choose the candidate who wins the state of Colorado.
A U.S. Federal Court of Appeals determined that it's unconstitutional to remove a "faithless elector" for not casting their vote for the presidential candidate that receives the most votes in Colorado.
In 2016, one of Colorado's nine electoral college electors cast their vote for a candidate that did not receive the most votes in Colorado. Hillary Clinton won the presidential vote in Colorado, and state law requires the nine electoral college electors to cast their vote for the person who wins the popular vote in the state.
Micheal Baca, one of nine electoral college electors, cast his vote for John Kasich. Then-Secretary of State Wayne Williams removed Baca as an elector, discarded his vote and appointed a replacement elector, who then cast their vote for Clinton.
Two other electors, Polly Baca (no relation to Micheal) and Robert Nemanich, intended to also vote for Kasich, but voted for Clinton after seeing what happened to Micheal Baca.
The three sued the state and lost in District Court. That decision was then appealed to the 10th U.S. Circuit Court of Appeals.
The Court of Appeals determined that Baca should not have been removed as an elector for casting a vote that wasn't in line with the presidential election outcome.
"We conclude the state's removal of Mr. Baca and nullification of his vote were unconstitutional," the appeals court said in its decision. "Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right."
"The idea that the 10th Circuit would be taking power away from Colorado voters definitely doesn't sit well with me," said Secretary of State Jena Griswold (D-Colorado). "At this point, we're looking at all legal and legislative solutions. Whether going to the Supreme Court is an option we will pursue that's TBD."
Electoral College electors are selected by political parties at party's national conventions. Democrats select nine people to act as electors if the Democratic candidate receives the most votes in Colorado. Republicans select nine people to act as electors if the Republican candidate receives the most votes in Colorado.
The decision by the Court of Appeals suggests that electors can choose whomever they want and not necessarily their party's candidate that received the most votes.
"A few non-elected people should not be able to decide who the President is, and potentially in disregard of the majority vote," said Griswold. "I support Wayne's (Williams) decision and, I think, it's really important to note that the idea of one person, one vote isn't a partisan issue."
Williams fears that without a Supreme Court ruling, the decision could lead to nefarious actions.
"You could bribe individual electors and even if the elector took a bribe, you can't remove them from the office," said Williams. "So, you could essentially buy the presidency by bribing 270 electors and there's nothing anybody can do about it under this decision."
An attorney representing Baca in the federal appeals court said voters know they're voting for electors and not the candidate.
"There never has been a right to vote directly for President, only for presidential electors, and then electors, in turn, vote for president," said Jason Harrow.
He said in most circumstances electors should vote for the candidate of their party than was on the ballot.
"They have done so over 99% of the time throughout history," said Harrow.
The Court of Appeals decision also puts into question Colorado's potential involvement in the National Popular Vote compact. Earlier this year, Gov. Jared Polis (D-Colorado) signed into law the National Popular Vote bill that would tie Colorado's nine electoral college votes to the presidential candidate that receives the most votes nationwide, and not just the most votes in Colorado. This wouldn't take effect until states equaling 270 electoral college votes agree to be part of the compact. So far, 15 states and Washington, D.C. have agreed to join the compact. Those 16 jurisdictions total 196 electoral college votes.
A group wanting to repeal Colorado's National Popular Vote law collected signatures to put the issue on the ballot for voters to decide.
Coloradans Vote said it collected about 227,000 signatures to get the issue qualified for the November 2020 ballot. They needed to collect 124,632 valid Colorado voter signatures to get it on the ballot.
The Colorado Secretary of State's Office is currently reviewing the petitions and has until August 30 to determine if enough valid signatures were collected to put the issue to a vote in 2020.
In the Court of Appeals decision, the majority opinion noted that in the 2016 election, 13 faithless elector votes were counted by Congress. Three electoral college electors in Washington cast their vote for Colin Powell, another elector in Washington chose Faith Spotted Eagle, a Texas elector cast their vote for Kasich, another Texas elector cast their vote for Ron Paul, a Hawaii elector chose Bernie Sanders.
The opinion also noted that the first faithless elector vote happened in 1796, and that there have been 166 faithless electoral votes certified and counted.
"Indeed, we are aware of no instance in which Congress has failed to count (a faithless) vote, or in which a state—before Colorado—has attempted to remove an elector in the process of voting, or to nullify a faithless vote. And on only one occasion has Congress even debated whether (a faithless) vote should be counted," the Court wrote in the majority opinion.
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