Case No. 19-465 | Wash.
Case No. 19-518 | 10th Cir.
May 13, 2020
Preview by Amy Orlov, Online Editor
Chiafalo v. Washington and Colorado Department of State v. Baca stem from the 2016 United States presidential election between Hillary Clinton and Donald Trump. These two cases center around the issue of “faithless electors”—those members of the United States Electoral College who vote for a presidential or vice-presidential candidate for whom they have not previously pledged to vote. These cases are significant as the general public has expressed growing criticism towards the Electoral College and has called for reforms following the 2016 presidential election. Although faithless electors have never changed the outcome of an election, there is concern that faithless electors could influence a future election should there be a close Electoral College vote.
As with all presidential elections, voters in the United States do not directly elect the president and vice president, and instead, a group of appointed electors votes to select these two executive positions. Leading up to an election, each state political party will choose a group of electors equal to the number of senators and representatives allotted to that state. The electors from the political party of the candidates that win the popular vote in that state will ultimately cast the vote for the president and vice president in early December for that state. In both the states of Washington and Colorado, the winner of the popular vote receives all of a state’s electoral votes.
Washington and Colorado each have laws restricting the ability for an Electoral College designee to become a faithless elector—i.e. laws that restrict the ability for an elector to break with the candidate to whom they pledged and vote for someone else. In Washington, any elector who does not vote for their party’s candidate is subject to a fine up to $1,000. In Colorado, state law mandates that all electors be required to vote for the candidates who won the popular vote.
In 2016, Hillary Clinton and Tim Kaine received the popular vote in both Washington and Colorado. In Chiafalo, Peter Bret Chiafalo and two other individuals served as three of the twelve electors for the Washington Democratic Party. For president, they each voted for Colin Powell, and for vice president, they each voted for someone other than Tim Kaine. In Baca, Michael Baca and two other individuals served as three of the nine electors for the Colorado Democratic Party. Baca attempted to vote for John Kasich as the presidential nominee, and the other electors also desired to vote for someone other than Hillary Clinton as president. These individuals were trying to create a coalition of electors from both the Democratic and Republican parties who would vote for candidates other than Donald Trump and Hillary Clinton in order to deny Trump a majority in the Electoral College, thus resulting in a contingent election in the House of Representatives. See Consolidated Opening Brief for Presidential Electors at 12, Chiafalo v. Washington, Nos. 19-465 & 19-518, (U.S. filed Mar. 2, 2019).
While these two cases were originally consolidated, the Supreme Court chose to separate the cases after Justice Sotomayor recused herself from Baca since she was previously friends with one of the respondents. Attorney Lawrence Lessig, the founder of an organization that seeks to promote election reform, represents the electors in both cases.
In Chiafalo, the state fined each petitioner $1,000 for failing to vote for his or her party’s nominee. The electors filed a case in state court challenging their fines, but the Washington Supreme Court ultimately upheld the punishment and ruled in favor of the government. See In re Guerra, 193 Wash. 2d 380, 402 (2019). In Baca, Colorado election officials removed Baca as an elector and replaced him with an alternate elector who voted for Clinton and Kaine. The two other respondents ultimately cast their votes for Hillary Clinton. Baca and his fellow electors filed a case in federal court claiming that the Colorado laws restricting their voting abilities are unconstitutional. The U.S. Court of Appeals for the Tenth Circuit agreed with the electors and held that the Colorado laws prohibiting faithless voting violate the Constitution. See Baca v. Colo. Dep’t of State, 935 F.3d 887, 902 (10th Cir. 2019).
The merits issue in both cases is whether states have the constitutional power to bind electors to their pledged nominee following the popular vote election. The electors assert that the state’s authority to dictate their votes ended following their appointment and that they were free to vote as they desired under the Twelfth Amendment of the Constitution. See Consolidated Opening Brief for Presidential Electors at 18–26. The electors further argue that they are free to vote as they choose based on the direct wording of the Constitution and the historical intentions of the founding fathers. See id. at 17–29. In contrast, the states believe that Article II of the Constitution allows states to control their electors’ voting capabilities in order to give meaning to their state’s popular vote. See Brief for Respondent State of Washington at 21–25, Chiafalo v. Washington, No. 19-465 (U.S. filed Apr. 1, 2019).
There is one additional issue in Baca: whether the electors had standing to bring their case in federal court as the electors are considered state officials. Colorado argues that state officials cannot bring federal lawsuits challenging state laws that detail the responsibilities of the state officials. See Brief for Petitioner at 10, Colo. Dep’t of State v. Baca, No. 19-518 (U.S. filed Apr. 1, 2019). This argument is consistent with the views expressed in the Tenth Circuit’s dissent.