Wednesday, May 13, 2020

Supreme Court hears Colorado's 'faithless electors' case, by phone

Posted By on Wed, May 13, 2020 at 5:02 PM

click to enlarge Colorado Attorney General Phil Weiser argued in a Supreme Court case. - FILE PHOTO
  • File photo
  • Colorado Attorney General Phil Weiser argued in a Supreme Court case.

Two sides in a high-profile case surrounding three would-be "faithless electors" from Colorado argued before the U.S. Supreme Court on May 13 — from a distance.

Rather than argue the state's case in Washington, D.C., Colorado Attorney General Phil Weiser sat in a Denver conference room with a "nice view of the Capitol," on the eighth floor of the Ralph L. Carr Judicial Building with his wife and son.

Weiser admits he "did not focus so much on the exterior view during the argument," though.

And for good reason: Some scholars have said this case has the potential to completely upend the way the U.S. elects the president.

The case centers on the decision of a so-called "faithless elector," Colorado's Micheal Baca, to cast a vote for presidential candidate John Kasich in the 2016 election rather than Hillary Clinton, who won the state's popular vote. Two other Democratic electors, Polly Baca and Robert Nemanich, had also planned to cast their votes for Kasich but did not do so.

(The aim of all three was to deprive Donald Trump of enough votes to win the presidency as part of a national effort.)

In Colorado (as in most states), members of the Electoral College are required by law to cast their votes for the candidate who wins the popular vote in a given state. So, Baca was replaced by then-Secretary of State Wayne Williams.

The three electors took the case to court — and in August, the 10th U.S. Circuit Court of Appeals ruled in their favor.

In October, Colorado Secretary of State Jena Griswold and Attorney General Phil Weiser petitioned the Supreme Court to hear the case. Their petition was granted in January, and 45 states plus the District of Columbia filed a brief in support of states' rights to impose requirements on electors.

Attorneys for the "faithless electors," on the other hand, argue that electors have autonomy to vote for whomever they choose.

The Supreme Court heard a similar case from Washington state, in which electors were fined for not voting for the winner of that state's popular vote, just before Colorado's case.

Recordings of the oral arguments will be available on the Supreme Court's website by the end of the week.

Until then, here's a recap:

• One of Weiser's central arguments, which was endorsed by Washington state, is that the Constitution allows state lawmakers to enact any limitations they choose for electors, as long as those limitations don't interfere with other constitutional requirements, such as those barring discrimination. (This argument appears to suggest that the National Popular Vote pact, a movement to require electors to vote for the national popular vote winner, would withstand merit.)

"The 14th Amendment quite notably means a state could not remove an elector based on race or religion," Weiser explained to Chief Justice John Roberts. "Also, the qualifications clause [of the Constitution] means you can't remove electors for the purpose of adding qualifications for who can be president."

• Justice Brett Kavanaugh asked a rather philosophical question: "What is the purpose of having electors?"

"When electors are set up in the constitutional design, that allows for states to make a choice," Weiser replied. "Electors can either vote as proxy voters on behalf of the public, as we do here in Colorado, or they can be free agents."

•Meanwhile, Jason Harrow, chief counsel at Equal Citizens, a Massachusetts-based firm that advocates for election reform, argued the opposite: that electors, as individuals, have nearly limitless discretion.

"Once the vote begins, that vote by ballot is the electors," said Harrow. He argued that Colorado's law binding electors to the popular vote allows no leeway, even if a presidential candidate was facing accusations of bribery, for example, or had passed away after the general population cast their votes.

• During a video conference after the oral arguments, Weiser suggested that lawyers for the faithless electors in Washington state's case implied that the chaos that could result from giving electors that ultimate discretion could lead to needed changes with the Electoral College system.

But Weiser told reporters that goes against Colorado's philosophy.

"I personally am not a fan of a chaos theory," he said. "I believe in working hard to make institutions work in a functional and pragmatic way. That's what we're doing here in Colorado."

• One highlight for Weiser? Justice Clarence Thomas' Lord of the Rings reference.

Thomas is famous for rarely speaking during oral arguments, but wasn't shy about grilling Weiser and Harrow during their remote presentations.

"The elector who has promised to vote for the winning candidate could suddenly say, 'I’m going to vote for Frodo Baggins ... I really like Frodo Baggins,'" he posed to Harrow, "and you’re saying under your system you can’t do anything about that."

"I think there is something to be done, because that would be a vote for a non-person," Harrow replied. (Harrow had earlier stated that case law dictates electors cannot vote for someone who is not a human.)

Weiser, a self-described "huge fan of J.R.R. Tolkien," looped that reference back in to his closing argument.

"During the course of this entire litigation and this argument today, my friends on the other side have failed to offer any viable theory on how to address the spectacle of a bribed elector, an elector who votes for Frodo Baggins, or one who would perpetrate a bait-and-switch on the people of our state," he said.

The Supreme Court is expected to issue a decision in Colorado and Washington state's cases anytime between now and June.

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