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Justices Rule - States Can Bind Electors
By Jane A Everham
Posted 2020-07-14T14:13:00Z

2 of Colorado's 'faithless electors' vow to keep up the fight after Supreme Court decision

Marianne Goodland, Colorado Politics                          Jul 6, 2020 Updated Jul 9, 2020


The Supreme Court stands on on Capitol Hill in Washington, Monday, July 6, 2020.

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The three electors at the heart of Monday's U.S. Supreme Court decision regarding "faithless electors" told Colorado Politics they're disappointed with Court's decision, and two of the three said they plan to move forward with efforts to eliminate the Electoral College.

The Supreme Court ruled unanimously Monday that states can require presidential electors to back their states’ popular vote winner in the Electoral College.

Monday's ruling, just under four months before the 2020 election, leaves in place laws in 32 states and the District of Columbia that bind electors to vote for the popular-vote winner, and electors almost always do so anyway.

So-called faithless electors have not been critical to the outcome of a presidential election, but that could change in a race decided by just a few electoral votes. It takes 270 electoral votes to win the presidency.

Justice Elena Kagan wrote for the court that a state may instruct “electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution — as well as with the trust of a Nation that here, We the People rule.”

The justices had scheduled arguments for the spring so they could resolve the issue before the election, rather than amid a potential political crisis after the country votes.

When the court heard arguments by telephone in May because of the coronavirus outbreak, justices invoked fears of bribery and chaos if electors could cast their ballots regardless of the popular vote outcome in their states.

The decision in Colorado Secretary of State v. Baca comes from the 2016 election, when three presidential electors in Colorado — Micheal Baca, Polly Baca (no relation) and Bob Nemanich — wanted to vote for someone other than the winner of Colorado's presidential election. Former Secretary of State Hillary Clinton won Colorado's popular vote, but the trio, known as "faithless electors" by detractors and "Hamilton electors" by supporters, wanted to vote otherwise. The multi-state movement hoped to deny President Trump the 37 votes he would need to put him over 270 for the Electoral College win.

Micheal Baca refused to obey state law that required electors to vote for the winner of the state's popular vote and tried to vote for Ohio Gov. John Kasich. But Secretary of State Wayne Williams issued an emergency rule requiring the electors to sign onto an oath none of them had seen before Dec. 19, 2016, the day of the Electoral College vote. The oath was a pledge to vote for the winner of the state's popular vote or be replaced. 

The three electors called the oath unconstitutional, although Polly Baca and Nemanich eventually signed it. Micheal Baca refused, put Kasich's name on his ballot and was immediately replaced. 

After the vote, Williams said he would pursue misdemeanor perjury charges against Micheal Baca, but Attorney General Cynthia Coffman declined to press charges. 

Micheal Baca told Colorado Politics on Monday that he was happy that there's an opinion, although some disappointment that the Court lumped both the Colorado and a case from Washington together. The difference between the two was that Baca wasn't allowed to cast his vote, he said. "It appeared the conservative justices' ruling on control was more correct than the opinion from the liberal justices," he said.

The most important part, in Kagan's first few lines, was that people elect the President and then said the Electoral College elects the president. "Which is it?" he said. "If electors are bound and no free will, why have electors, why not award points instead? Why have actual electors do this job? It brings us to a discussion we need to have as a country, how to vote for president. We've gone from indirect election of senators to direct, need to do the same for president. 

Micheal Baca now lives in Nevada and teaches high school civics. 

"I'm disappointed and sad," Polly Baca said Monday. "I feel strongly we ought to have one-person, one-vote for President of the United States. That doesn't happen with the Electoral College." She said she would continue to work "to make sure we achieve one-person, one-vote for President. That would require amending the US Constitution. We have a lot of work to do."

Polly Baca is once again an elector for the 2020 election, marking her fourth consecutive time as a presidential elector. She began running for an elector after the 2000 Bush win, which she pointed out also was a case where the President didn't win the popular vote.

Nemanich also called it disappointing but said it wasn't unexpected. "We were elated that this made it to the Supreme Court. Our purpose always was to enlighten the country and public about the dysfunction, inequality and danger of the Electoral College." The Hamilton electors hoped the case would serve as a stepping stone to getting a constitutional amendment to abolish it and allow direct election of president.

Wayne Williams "was the perfect foil," Nemanich said. "He walked into it with full guns a-blazing," and then the appellate court did the greatest thing by forcing this to the U.S. Supreme Court. "This is about us trying to rebuild a democracy that isn't working right now. I firmly believe that if we can get an amendment passed for a presidential election, things will fundamentally change. Candidates will have to run different campaigns, reach out to greater audiences, and people will feel confident again that we have a working democracy."

Nemanich ran for an elector this year but lost. "I don't wish what I saw happen" in 2016 on his successor, Judi Ingelido. Nemanich said he received death threats in 2016 and was also contacted by Russian state TV prior to the vote, which he turned over to the FBI.

He said he believes authoritarian and foreign interests can manipulate the Electoral College "as a means of usurping democracy. We have grown as a nation well beyond 1787 or 1803," to today, when the nation can rely on everyone voting.

Nemanich also pointed to a recent Newsweek opinion, co-authored by former Colorado Sen. Tim Wirth, that laid out how Trump could hold onto power even if he loses in November. That includes a plot to use emergency powers, which Wirth said is already being planned by Attorney General William Barr. Under that plot, Trump would declare that the vote was rigged, or claim that China interfered, and invoke a national emergency that would eventually throw the election to Congress. 

"I'm hoping Trump tries and fails" at what Wirth said was possible, Nemanich said. It would show the "urgency for getting rid of the Electoral College."

In all, there were 10 faithless electors in 2016, including a fourth in Washington, a Democratic elector in Hawaii and two Republican electors in Texas. In addition, Democratic electors who said they would not vote for Clinton were replaced in Maine and Minnesota.

The closest Electoral College margin in recent years was in 2000, when Republican George W. Bush received 271 votes to 266 for Democrat Al Gore. One elector from Washington, D.C., left her ballot blank.

The Supreme Court played a decisive role in that election, ending a recount in Florida, where Bush held a 537-vote margin out of 6 million ballots cast.

The justices scheduled separate arguments in the Washington and Colorado cases after Justice Sonia Sotomayor removed herself from the Colorado case because of a close friendship with Polly Baca.

In asking the Supreme Court to rule that states can require electors to vote for the state winner, Colorado had urged the justices not to wait until “the heat of a close presidential election.”

In a news conference Monday, Attorney General Phil Weiser said that the decision eliminates "elector rebellions." This case says "no" to electors who believe they have independent discretion, he said. If the state wants to bind their vote, it has the authority to do that. Weiser said the decision affirms the view that electors are "proxy voters" for the people of Colorado. "It's a great relief to have it decided in advance" of the November election.

"We believe in one-person, one-vote," said Secretary of State Jena Griswold. But there are growing concerns about the "corruptibility of electors" and foreign interests, such as Russia, which are trying to undermine democracy. This decision makes it harder for those foreign interests to run disinformation campaigns, she said.

The Associated Press contributed to this report.