Does Colorado want to win the state's faithless elector case?

I am reluctant to question the motives of litigators, particular a former law professor (indeed, law dean!) who now serves as the Colorado Attorney General. But I wonder about the state’s recent decision to petition the United States Supreme Court to hear the case arising from the “faithless elector” litigation from the 2016 election.

For background, I covered the earlier litigation here, including the Tenth Circuit’s 2-1 decision finding that Colorado wrongly replaced an elector who attempted to cast a vote for a candidate other than the one he pledged to support before Election Day. The one dissenting judge would have found the claim moot.

There are a number of procedural oddities in the case. For one, Colorado waived sovereign immunity, which seems like a bizarre strategic decision if Colorado wanted to defend the claim.

Colorado also did not argue that the state fell outside the scope of Section 1983 claims, which allows a “person” to be held liable for damages. The majority concluded this claim, too, was “waived.” But if Congress denied a remedy under the statute, a party cannot waive that—the federal judiciary has no power to hear the case.

The dissenting judge pointed out that there was no authority to hear the case. It’s a pretty good argument. So why not take the case to the Tenth Circuit en banc, which may be interested in cleaning up such a conclusion? It would allow Colorado’s faithless elector law to stand.

Indeed, the Eighth Circuit reached a similar result in its claim arising out of a faithless elector in Minnesota—a case the Tenth Circuit never even cited!

So why go to the Supreme Court to argue about the merits of the faithless presidential electors issue? Why do it this way, arguing that the “foundation of our nation is at risk”?

After all, if the Supreme Court looks at this case and sees a moot claim… would it take the case? It’s not clear. The Supreme Court doesn’t just engage in error correction of lower courts. Maybe it would feel compelled to correct the lower court’s decision to avoid the faithless elector precedent from sitting out there. Or, maybe it would simply kick the case because it wasn’t significant enough given the procedural error. (Or, maybe it found no procedural error at all, I suppose!)

I’m not sure why this strategic path was taken. Understandably, the Supreme Court has been asked to hear a challenge in which the Washington Supreme Court upheld fines for three faithless electors in the state—so maybe, I guess, there’s a sense of urgency. It’s easier for the United States Supreme Court to ignore a case that (1) preserves the status quo, (2) affects just one state, and (3) didn’t actually replace an elector. Adding the Colorado case (which found the statute unconstitutional, is precedent for all states in the Tenth Circuit, and actually replaced an elector) is a much riper target to find the state law unconstitutional, the opposite of what defenders of the law would want.

Alternatively, maybe the hope is to resolve this definitively by 2020, and an en banc review may still leave time for review with the United States Supreme Court.

Maybe it’s the juiciness of raising a highly salient election law challenge before the Supreme Court, or maybe it’s a strategic reason I haven’t considered. But it’s a curious one that I thought I’d highlight.

UPDATE: Professor Rick Hasen blogs his thoughts here. He writes: “Here’s one possibility I don’t think Derek covers: Colorado wants definitive Supreme Court precedent allowing states to block faithless electors. If Colorado went to the 10th circuit and won on procedural grounds, that would not resolve the merits of barring faithless electors in the 10th circuit, it would not resolve the issue nationally, and it would make it less likely the Supreme Court would take the Washington case, because there would no longer be a split among the courts.”

Why "faithless electors" have little power to change the winner of presidential elections

Adam Liptak at the New York Times highlights the request for the Supreme Court to consider “faithless” presidential electors from the 2016 presidential election. The headline (not written by Mr. Liptak): “‘Faithless Electors’ Could Tip the 2020 Election. Will the Supreme Court Stop Them?”

It’s not a great headline. Could faithless electors sow chaos and discord into the 2020 presidential election? Certainly. Could they alter the outcome? That’s another matter entirely….

Below is a chart of “faithless” presidential electors since 1900. (This excludes faithless vice-presidential votes.) It’s tough to make apples to apples comparisons much earlier (or, indeed, even before World War I) because states often printed ballots with individual electors, to the extent voter expectation or reliance is a factor. But this nicely covers recent history.

Year	Faithless winners	Faithless losers	Winner's presumptive margin of victory
1948	1	0	37
1956	0	1	191
1960	0	1	34
1968	1	0	32
1972	1	0	251
1976	0	1	27
1988	0	1	156
2000	0	1	1
2004	0	1	16
2016	2	5	36

It’s worth noting that there have been more “faithless” votes cast from losing candidates (11) than winning candidates (5). (If we included the 3 electors who actively attempted to vote for another candidate in 2016 but were replaced or revoted for the pledged candidate, the margin would rise to 14 to 5.) Even excluding 2016, the margin is 6 to 3. (That said, it’s hard to count the likely mistaken vote of a 2004 Minnesota presidential elector for “John Ewards [sic]” as truly “faithless” for the loser. UPDATE: An elector in 1948 was on two separate slates, one for the Democratic candidate and one for the Dixiecrat candidate, and even though the Democratic candidate won he cast hist vote for the Dixiecrat candidate. One can question whether this is “faithless,” too.) Of course, there are perils in such a small sample size. But it reflects that it’s easier for losing slates of presidential electors to protest or make a “statement” with their faithless vote. That is, there’s essentially no cost for electors of losing candidates to behave faithlessly—their candidate was already going to lose. Winning candidates, however, have much more to lose; we might expect electors to take their role more seriously (and faithfully).

Note, too, that the margin of victory can matter. In each race, I list the winning candidate’s presumptive margin of victory (i.e., how many votes the winner could spare to ensure he received a majority of the vote, and presumptive assuming no electors were faithless). Note that a faithless vote in 1972 was comically inconsequential: Nixon had a 251-vote margin of victory. Of course, 2000 is the opposite: George W. Bush could afford just one defection to retain his majority, as he had just 271 electoral votes and needed 270 to win the election. (Professor Robert Alexander has examined efforts from 2000 and beyond to court faithless electors, particularly in close matchups.) The higher the leverage of the situation, the less likely it’d be that an elector would behave faithlessly.

Win. That’s another caveat. If no candidate secures a majority, the top three receiving vote-getters proceed to the House, where the House votes and each state’s delegation receives one vote. That includes a 269-269 tie, which means, with no majority, those two candidates would go to the House.

Another way, then, to think about the faithless electors is to look at who the faithless electors cast their votes for. Did they try to make the second-place vote-getter (the runner-up) win the election? Or did they cast their vote for someone else?

Year	Faithless winners	Faithless votes cast for runner-up	Runner-up's presumptive margin of loss
1948	1	0	-77
1968	1	0	-79
1972	1	0	-253
2016	2	0	-38

Since 1900, exactly zero faithless electors have cast a vote for the runner-up. Faithless electors have cast a vote for a third-party candidate who placed third, or for a marginal candidate who’d otherwise receive zero electoral votes. They have never in recent history attempted to help the runner-up win the election.

Note how this second examination works. Faithless electors could deprive the winner of a majority. But to deprive the winner of the majority, and to give another candidate the majority (i.e., the power to change the winner) is something else altogether. And we have zero instances of any faithless elector ever attempting to do so.

Of course, past performance is no indication of future performance. But it’s another piece in our examination of presidential electors. Faithless electors would’ve needed astonishing coordination to pull off the feat, and they’re unlikely to be so malleable in the future.

It’s entirely possible that very aggressive courting of presidential electors can deny a candidate a majority. But to court them to change the winner? We have no evidence of that from extensive past practices.

Denying the majority to the winner sends the election to the House. In the 1824 election, the only post-12th Amendment election sent to the House, we saw the House choose the second-place vote-getter (John Quincy Adams) when no candidate received a majority of the electoral vote and Andrew Jackson received a plurality of the vote. It’s not clear how the House might handle an election where a candidate had the presumptive edge in the Electoral College and was denied the majority simply by faithless electors—it’s possible the House would play “constitutional hardball” and exercise its independent judgment; but, more likely, I think, is a vote for the presumptive winner to nullify the effect of the faithless electors. I could be wrong.

But, at best, faithless electors have historically sought chaos, not a different winner. I’ve explained some reason why they’ve done so. And I think it’s a reason we wouldn’t expect faithless elector to “tip” a presidential election.

Analysis: 10th Circuit finds Colorado wrongly removed faithless presidential elector in 2016

In the latest of a string of faithless elector litigation arising from the 2016 presidential election, the 10th Circuit issued a decision finding that Colorado wrongly removed an elector pledged to support Clinton after he attempted to cast a vote for John Kasich. (Disclosure: I filed an amicus brief in support of neither party but calling for affirming the district court result below; the bulk of the brief focused on whether ballots must be secret, an issue the court did not reach.)

The question is a hard one, I admit, but the majority opinion suffers from a number of weaknesses. I’m not entirely certain of whether the case still presents a case or controversy, as the dissenting opinion points out; indeed, remarkably, the majority never cites the Eighth Circuit opinion on a removed faithless elector from Minnesota, which concluded the claim was moot. My guess is that if the case is taken en banc or to the Supreme Court, it could well be tossed on procedural grounds.

The opinion also does what many analyzing the Electoral College do: confuse ought and is. Federalist 68, for instance, describes how Alexander Hamilton envisions the Electoral College will function; but that says very little about what the state may do to regulate its function. Indeed, we see very quickly that Hamilton’s “ought” never comes to fruition, and the Electoral College never functioned as designed. Additionally, I’m not convinced that the role of electors before the Twelfth Amendment is necessarily the same as after—particularly given that states had begun to regulate the behavior of electors, such as authorizing their replacement in their absence or in the neglect of duty.

But, as I note, these are hard questions, and it is quite common to see ought/is confusion pertaining to the power of the state over presidential electors. I want to focus on two particular weaknesses of the opinion. First, the role of Congress; and second, the role of elector “choice.”

Late in the opinion (pp. 100-101), the Court notes that Congress has historically counted the votes of faithless electors, citing a string of instances, an “uninterrupted history of Congress counting every anomalous vote cast bay an elector.” That’s both irrelevant and false.

It’s irrelevant, because, until 2016, never had an elector cast a vote in a state that had a law with a mechanism that authorized that elector’s replacement. Undoubtedly, Congress believed that electors could be faithless—they repeatedly counted votes of faithless electors. But could a state cabin the faithless elector—that is, replace a faithless elector? That question was never raised in a count before 2016, so Congress’s past act says little about state power.

And it’s false, because, in 2016, Congress did count the electoral votes for both a replacement elector in Colorado and a replacement elector in Minnesota—meaning, Congress twice ratified the state’s power to replace a faithless elector.

Granted, no one objected to either vote cast, so it’s hard to say that Congress has expressly ratified it. But there were a dozen attempted protests lodged during the 2016 counting of electoral votes, ranging from concerns about voter suppression to Russian interference, and Vice President Joe Biden, presiding over the joint session to count electoral votes, found each objection out of order (because while members of the House continued to object, no Senator joined any objection, which the Electoral Count Act of 1887 requires before Congress will entertain an object). I argued in the Wall Street Journal in 2017 that this is Congress’s prerogative.

So, Congress counted Colorado’s replacement elector. A federal court has now held that Colorado lacked the power to replace that elector. Was Congress wrong? Should it have ignored that replacement elector’s vote and docked an electoral vote from Hillary Clinton? Were the other eight electors wrong to sign a list saying that the state cast nine votes for Hilary Clinton? The court would never say so, given that it claimed it was only handling a claim for nominal damages. But the suggestion that a court might tell Congress it wrongly counted an electoral vote is, in my view, significant.

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Second, the court phrases its holding in various ways, but the crux is something like this: “we conclude the states may not interfere with a presidential elector who exercises discretion in casting votes for the President and Vice President of the United States.” Elsewhere: “they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.” Still elsewhere: “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.”

As the facts lay out, “Despite taking the oath, Mr. Baca crossed out ‘Hillary Clinton’ from his presidential ballot and wrote in ‘John Kasich.’” The form of the ballot is replicated here.

The power of the elector to choose leaves some unanswered questions. First and foremost is Colorado’s ballot. In any other election in the United States, this ballot would be thrown out. Why? The ballot has one option, one name, and does not authorize write-ins—this is essentially a spoiled ballot. So did the state print the ballot wrong? Does the state lack the power to print the ballot in presidential elections? Must the state count the write-ins of electors?

What if the elector’s choice is to not vote? Could the elector be replaced then? Or, to cast a blank vote? Could the elector be replaced then?

What about if the electors vote for an ineligible candidate, as the court acknowledges is a limitation on electors in n.27 of the opinion? Does the state have the remedy to replace them—even though there’s no “express” authority in the Constitution that would give the state that power?

Colorado requires presidential candidates to file ahead of the election as a condition of ballot access for their slate of electors. John Kasich never did. Could the state restrict the electors’ decision to only to choose among those candidates who filed before the election?

John Kasich also expressly disclaimed that he was a candidate. Could the state restrict the electors’ discretion to only candidates who want to serve in the office—that is, to prevent the state’s electoral vote from being thrown away?

(Professor Michael Morley identifies still other good questions about the scope of the opinion—in particular, could the Secretary of State simply ignore the vote rather than replace him? Or file a competing slate of electors with Congress to let Congress sort it out?)

Each of these are challenging questions, in my view. But the court’s opinion would seem to elide over all of them. That’s because it quickly moves past the state’s power to “direct” the “manner” of “appoint[ing]” electors and concludes that the state lacks any power once the elector starts to act. I’m not entirely persuaded—that is, I think the state probably has some power to replace electors (including those who don’t show up, or those who fail to act), and perhaps even replace electors who cast illegal votes (e.g., for a non-citizen). And the Uniform Law Commission has recognized some of the subtleties in its Faithful Presidential Electors Act. Electors can, after all, resign from office. The Act suggests that when the elector casts a vote for someone other than the candidate he has pledged to support, he has resigned from office and created a vacancy.

Nevertheless, the breadth of this opinion—a suggestion that there’s a virtually unfettered choice, or at least that the state can’t fetter the choice—is what’s the most remarkable part of it. The contours of that choice are not defined, and the power of the state to act with electors who do a variety of things listed above may well be foreclosed by the court’s underdeveloped opinion.

But I want to close with one thought about the opinion’s impact. For decades, electors and states have had an uneasy kind of truce. Electors typically aren’t faithless, and states have wielded the threat of replacement even if they haven’t actually replaced them. This opinion, however, collapses that truce. Electors are now instructed that they can vote for whomever they want, and replacement is not an option. While that might have been true decades ago, too, before any replacement laws were on the books, one wonders whether electors will be more inclined to stray in 2020—particularly given fawning attention from disgruntled voters. True, these handful of electors didn’t change the outcome of the election, and in a closer election it’s less and less likely that electors are faithless, as their votes are more significant and their ability to protest carries greater weight. But I wonder about what this might yield in closer elections. Political parties have significant power to choose presidential electors—they may be scrutinizing their choices much more carefully in 2020.

Maine, ranked choice voting, and the National Popular Vote Compact

Maine recently enacted ranked choice voting (“RCV”) for most of its elections. Very briefly, it allows voters to rank the preference of candidates instead of just picking one.

The original Maine bill excluded presidential elections from RCV. But the legislature recently approved expanding that to presidential elections (only later to be hung up and carried over to a later legislative session).

The new 21-A Maine Rev. Stat. Ann. § 805, sub-§2, if approved in the future, would be amended to read: “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State according to the ranked-choice method of counting votes described in section 723-A. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district according to the ranked-choice method of counting votes described in section 723-A.”

Here’s how RCV looks in 723-A:

Except as provided in subsections 3 and 4, the following procedures are used to determine the winner in an election determined by ranked-choice voting. Tabulation must proceed in rounds. In each round, the number of votes for each continuing candidate must be counted. Each continuing ballot counts as one vote for its highest-ranked continuing candidate for that round. Exhausted ballots are not counted for any continuing candidate. The round then ends with one of the following 2 potential outcomes.

A. If there are 2 or fewer continuing candidates, the candidate with the most votes is declared the winner of the election.

B. If there are more than 2 continuing candidates, the last-place candidate is defeated and a new round begins.

Whew. What that means is, candidates are ranked. The top-ranked candidates on each ballot are tallied. The candidate with the fewest top-ranked votes is eliminated. The ballots are retallied, this time as if that eliminate candidate weren’t there, and voters who’d cast their first-place votes for that eliminated candidate now have their second choice counted as the first choice. This proceeds in rounds until there are 2 candidates, and the candidate with the higher vote is the winner.

All well and good for the State of Maine, which may “appoint” presidential electors in the “manner” that the legislature may “direct,” and RCV certainly falls within that.

But how might this interact with a national tally of the popular vote for presidential elections—and, specifically, the National Popular Vote Compact (“NPV”)?

While Maine is not (yet?) a member to the NPV, many states are, and in the event 270 electoral votes’ worth of states join, it takes effect. And it would compile the votes of all states, including Maine, in the national popular vote total.

Here’s the relevant text of typical common language from the NPV:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each state of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.

…

The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.

(One important caveat from reading this text: in the event a state chooses not to hold a popular election for president—say, as Colorado did in 1876, when the legislature simply chose presidential electors—those states would not be included in a national popular vote total.)

So, what happens in Maine if RCV takes place? How would Maine’s vote be totaled in the national popular vote?

If there are, say, five candidates on the ballot, the popular vote total couldn’t really be the votes for those five candidates. RCV suggests paring them down until you get to two, then you name the winner. And voters cast votes understanding that their choices will be eliminated if they fail to advance in the next round. An advantage of RCV for independent or minor party candidates is that voters can vote for them without “wasting” a vote.

So RCV would then narrow down the votes of Mainers to two candidates. Those two candidates would then appear to be the only “votes” for a “presidential slate” in the State of Maine—that is, the tally after the final round of RCV. It would empower Maine voters over national voters—after all, the people of Maine would typically have all of their votes allocated to a Republican candidate or a Democratic candidate, as opposed to voters in other states that may scatter some number of voters among independent or minor party candidates.

But it could produce an alternative wrinkle. In 1992, Ross Perot received slightly more votes than George H.W. Bush to place second in the statewide vote. It’s not clear how RCV would have played out. But suppose that in the penultimate round of RCV Mr. Bush was eliminated, and the final round of RCV voting included just Bill Clinton and Mr. Perot. In the national popular vote total, the Republican candidate would receive zero votes from Maine—a small state, sure, but a significant cost to a major party candidate.

In short, I think inserting RCV in Maine is fine for Maine if it’s what Maine wants to do. But it’s precisely a reason why we cannot think of a “national popular vote” total by adding up the aggregate votes cast in 51 jurisdiction. This “invisible federalism” typically operates in a way we don’t notice—we might simply look at each state’s votes and assume we can add them together for a single popular vote total. But the decisions of individual states, like a potential RCV in Maine, could have unforeseen consequences that undermine how we think about a national popular vote total. It’s a reason why Electoral College reform to make the presidential election truly national must occur at the federal level and not at the state level.

Washington State Supreme Court upholds fines for 2016 faithless electors

In the latest of a string of litigation surrounding faithless electors, the Washington State Supreme Court has issued its decision in In re Guerra, here. Four electors cast votes for candidates other than Hillary Clinton and Tim Kaine; all four were fined $1000 each pursuant to state law. Three appealed the decision. In an 8-1 decision, the Court upheld the fines.

The Court opens by acknowledging that presidential electors perform a “federal function.” The electors argued that if they are performing a federal function, there is ample case law that suggests that Congress cannot interfere with that activity. But the Court noted that states may still holds power over them under Article II of the Constitution. And while states might not be able to interfere with certain federal functions, the Court understood the precedent of cases like Ray v. Blair and McPherson v. Blacker that the state’s power included “broad authority.” Language from Supreme Court precedent suggested that the role of the elector is to “transmit the vote of the State for president,” (In re Green) “suggesting that the Electoral College vote belongs to the State, not the individual elector.” (p. 17)

Unfortunately, the Court’s interpretation of precedent does not rely as heavily on the text of the Constitution, which states that the electors “shall make distinct lists . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States.” (Amend. XII.) It’s certainly plausible to argue that the state has the power over the electors, but it is a harder textual claim to say that the votes “belong[] to the state,” whatever Supreme Court precedent may say.

But, the Court also finds that the Twelfth Amendment ensures that electors meet at a time and place, cast votes for two qualified candidates, and that the Amendment “does not limit a state’s authority in adding requirements to presidential electors.” (p. 18) The Court goes on to find that cases like U.S. Term Limits v. Thornton and Powell v. McCormack, which concluded that qualifications could not be added to congressional candidates, do not extend to presidential electors. (There is ample historical support for this practice, as qualifications have regularly been added to electors, including district residency restrictions, which were raised at length in U.S. Term Limits.)

As a textual matter, the court in n.8 rejects the notion that the word “ballot” implies “personal, secret ballot.” It points out that historically, the fact that “faithless electors” can be identified suggests the practice of casting ballots has not always been in secret. I think that’s an accurate understanding of the word “ballot,” a project I’m working on.

The Court rejects a First Amendment claim once it finds that there is no personal right of the elector.

A brief dissent argues that the “power to appoint” is not the “power to control.,” and it cites Justice Jackson’s concerns in his dissent in Ray v. Blair.

In short, it’s a fairly unsurprising outcome, but it leaves some deep uncertainty, I think, about how the United States Supreme Court’s precedents in this area harmonize with the text of the Constitution. For instance, some precedent—and this court’s opinion—conflate “state” with “legislature,” where the “legislature” is the entity empowered to “direct” the “manner” of “appoint[ing]” electors.

If the case is appealed to the United States Supreme Court, it also presents an interesting wrinkle—the electors here are not forbidden from casting “faithless votes,” but are only fined if they do so. That’s a less onerous (but still significant) consequence than replacing faithless electors, like what occurred in Colorado.

The Electoral College prevents electing a vice presidential candidate separate from a presidential candidate

Recently, news about a startup campaign to elect the vice president separately from electing the president has popped up. As the vice.run movement describes itself, its goal is to “reinstate the vice presidency as a democratically elected position. Vice.run’s goal is to create a vice presidential ballot line in the 2020 election in all 50 states.”

It sounds like a fascinating idea. But under any scrutiny, it just won’t work. That’s because the Electoral College doesn’t function this way.

To begin, it’s entirely correct to say that states don’t have to list a particular president-vice president combination unless they seek ballot access for that combination, and it’s possible to think about alternative arrangements to how we typically look at elections. A couple of historic examples come to mind. In 1836, the Virginia Democratic Party despised Martin Van Buren’s running mate Richard Mentor Johnson. While most states’ electors ultimately voted for Van Buren and Johnson, Virginia’s electors voted for Van Buren and William Smith. That prevented Johnson from receiving a majority of electoral votes, so the election was sent to the Senate, which elected Johnson over runner-up Whig Francis Granger.

In the same election, Whigs chose not to field a single candidate, but fielded multiple candidates that they hoped each would receive sufficient support over the Democratic candidate, prevent the Democratic candidate from securing a majority of electors, and send the race to the House of Representatives to choose among the top three vote-getters, potentially yielding a Whig candidate.

All this is to say we’ve seen some interesting and creative attempts to use the Electoral College framework to achieve particular ends. But what about a separate vice presidential candidate?

The logic (although there isn’t much law) spelled out on the vice.run site goes as follows: a vice presidential candidate could be a separate line on the ballot. The people could then choose to vote for a particular presidential candidate and an entirely different vice presidential candidate. Particularly attractive independent vice presidential candidates may force presidential candidates to choose them as their running mates.

All interesting ideas. But utterly unworkable due to the Electoral College.

Each state receives presidential electors equal to the number of senators and representatives they receive—say, Vermont receives three. On Election Day, the first Tuesday after the first Monday in November, when voters cast a vote for Clinton-Kaine or Trump-Pence, they are actually casting a vote for three electors pledged to support Clinton-Kaine or Trump-Pence. (“Pledged” I use very loosely—some states have formal pledges, some are legally binding, others are mere informalities or general expectations.)

Then, on the first Monday after the second Wednesday in December, Vermont’s three presidential electors meet in the state, along with electors from the other states in their respective states. The electors cast two votes: one for president, and on a distinct ballot, one for vice president. (The headline of my post is a bit misleading—in fact, presidential electors are required to vote for a separate president and vice president. This post is about the people voting via ballot separately.)

Suppose now there is an election with a separate line item for president and vice president. How would we choose the electors? We simply couldn’t. We can’t pick three electors for president and another three electors for vice president; that would require a state to choose six electors, which it couldn’t do. So we’d need the same electors for president and vice president—which means we couldn’t have separate lines unless the electors were the same, or aligned with one another, which would seem to defeat the purpose of having separate lines.

Instead, the only feasible opportunity to have presidential and vice presidential candidates elected separately would look as follows: the state legislature chooses three electors; it designates that those electors must be bound to vote in accordance with the popular vote of a presidential candidate and a vice presidential candidate; then, those electors would have to vote for whichever presidential and vice presidential candidate were selected.

It’s not clear that this is permissible. Federal law requires that the electors be appointed on the first Tuesday after the first Monday in November. It’s not a straw poll to bind existing electors. So it’s unclear to me that a state could appoint its electors before the election. Additionally, if Election Day is about the appointment of electors, then there has to be a fixed number equal to the state’s total, which means you need a president-vice president slate of electors, not independent lines.

There are other confusing ways to think through this problem, like assuming there’s just one slate of electors representing all the names on the ballot, but I’m not sure these are feasible, either. And I’m also assuming the state can compel the electors to vote for the candidate they’re pledged to support—something I think is right, but certainly not uncontested. (Of course, faithless electors are a common problem in any Electoral College reform scenario, so I don’t dwell on that.) It also increases the likelihood that voters in a state choose a president and a vice president from their own state, if there are pluralities or tradeoffs in voting, which is impermissible under the Constitution—electors must vote for at least one candidate who is not an inhabitant of their state, and a president-vice president slate usually avoids this.

Unless I’m missing something—correct me if I am!—this scheme simply can’t work absent the legislature wholesale taking over the choosing of electors and having a straw poll of the people sometime before Election Day. The Electoral College anticipates one set of electors chosen on Election Day. That set of electors can exist however one sees fit, of course. But if voters have to make a choice of a president and a vice president on separate lines, there’s no feasible way to pick one common slate of electors like the Constitution demands.

Amicus Curiae Brief In Support of Neither Party in Baca v. Colorado Department of State

I'm pleased to share a brief I filed in Baca v. Colorado Department of State, a Tenth Circuit case concerning the power of state legislatures to cabin the discretion of presidential electors. You can view the brief here. It's part of a larger project on some archival research on original practices of the states concerning presidential electors--but, alas, the litigation calendar does not await the academic one!

From the Summary of Argument:

The text of the Constitution offers little about the scope of state authority to regulate presidential electors. And there is little judicial precedent about the proper scope of authority of states regulating presidential electors. See, e.g., Ray v. Blair, 343 U.S. 214 (1952). But there are extensive practices in states and in Congress—including practices at the time of the ratification of the Twelfth Amendment—that may help this Court determine the liquidated meaning of these constitutional provisions. Cf. The Federalist No. 37, at 236 (James Madison) (J.E. Cook ed., 1961).

These state and congressional practices reveal three conclusions. First, presidential electors have no right to anonymity when casting their ballots. Second, states have the power to replace presidential electors and levy fines on presidential electors, even after those electors have been selected. Third, Congress holds the power to scrutinize and even reject the electoral votes. In 2017, however, Congress counted Colorado’s electoral votes, and this Court has been asked to revisit a decision reserved to the judgment of Congress. When this Court decides this case, it should interpret the Twelfth Amendment through the practices of the states and of Congress.

The challenge facing the challenge to winner-take-all systems in the Electoral College

David Boies is leading an effort to challenge the winner-take-all method that most states use when awarding presidential electors. There are different ways states might award electors (which I used to project alternative electoral outcomes in 2016).

Brenden Cline in 2017 nicely summarized the series of major problems with this litigation. It's been argued and rejected before. Simply put, states have essentially plenary authority to choose the method of appointing electors, and the winner-take-all method has been around for 200 years, and used basically everywhere since the Civil War--with brief exceptions in Colorado in 1876 (legislative selection), Michigan in 1892 (district method), and Nebraska and Maine (district method) in recent years. (I discuss this plenary authority in 2007 and 2008 Election Law Journal pieces, which conclude that that plenary authority does not extend to states entering into interstate compacts with one another concerning the award of electors--at least not without congressional consent. I also discuss it as an element of federalism in Invisible Federalism and the Electoral College, 44 Arizona State Law Journal 1237 (2012).)

Since Election Day, a number of litigants--admittedly, mostly (if not all!) pro se--have attempted to file just such challenges. They've lost every time (0-6 by my count).

Schweikert v. Herring (W.D. Va. 2016): "The precise issue contained in Plaintiff’s complaint was previously litigated, dismissed, and affirmed summarily by the Supreme Court. Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968) (3 judge court), aff’d per curiam, 393 U.S. 320 (1969), reh’g denied, 393 U.S. 1112 (1969) . This Court lacks the authority to reach a conclusion that directly contradicts the Supreme Court’s own jurisprudence—which is precisely what Plaintiff’s complaint would ask this Court to do. Accordingly the case must be dismissed."

Birke v.The 538 Individual Members of the Electoral College (C.D. Cal. 2016): "to the extent Plaintiff challenges some states' 'winner-take-all' procedures . . . Plaintiff's challenges similarly lack merit. . . . Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1986), aff'd, 393 U.S. 320 (1969) (per curiam) (upholding 'winner-take-all' procedure for choosing electors)."

Conant v. Brown (D. Or. 2017): "Plaintiff's arguments are foreclosed by Supreme Court precedent. In a 1969 case, the Supreme Court summarily affirmed, per curiam, the district court's rejection of constitutional challenges to Virginia's method of providing electors to the electoral college based on a plurality vote in a statewide election. Williams v. Va. St. Bd. of Elections, 393 U.S. 320 (1969) (per curiam)."; affirmed, 726 Fed. App’x 611 (9th Cir. 2018).

Schultz v. Roberts (S.D. Cal. 2017): "The Electoral College system is specifically provided for by the Twelfth Amendment. Gray v. Sanders, 372 U.S. 368, 380 (1963) (“The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as . . . the use of the electoral college in the choice of a President.”). Schwartz does not allege any facts to support his claim that the Electoral College system violates his constitutional right to equal protection."; affirmed, 2018 WL 5314057 (9th Cir. 2018).

Williams v. North Carolina (W.D.N.C. 2017): "Defendants conclude that Plaintiff’s claims in this matter regarding the winner-take-all method of appointing electors do not differ significantly, if at all, from those asserted in McPherson, Delaware, Penton, Williams, Schweikert, Hitson, Conant, or Birke. The opinions in these cases, particularly the Supreme Court’s opinion in Blacker and summary affirmation of Williams, apply herein."

Gordon v. Nat'l Archives & Records Admin. (D.D.C. 2017): standing

Of course, part of litigation like this is theatrical. Another part of litigation like this is to get the Supreme Court to address the merits of the dispute, even if lower courts ought, under existing precedent, summarily dismiss such claims. But, time will tell whether this effort is any more successful than the many, many failed efforts that have gone before.

Update: Park v. Parnell (D. Alaska 2016): "As Judge Kleinfeld articulately stated, '[o]ur Constitution requires that electoral votes be cast state-by-state, not that the President be elected by plurality or majority of the nationwide popular vote.... Whether the electoral college and winner-take-all casting of electoral votes is a good idea or not has no bearing on the law. Article II, section 1 and the Twelfth Amendment are the Constitution we have.' Park's remedy lies in the constitutional amendment process, and not with the courts."

Update: Liu v. Ryan (2d Cir. 2018): "Here, Liu admits that his alleged injury is widely shared by the vast majority of Americans, and that injury is derivative because the Constitution grants states, not individuals, the right to select presidential electors, such that any harm arising from the disproportionality of the Electoral College belongs, in the first instance, to the states."

Status of 2016 faithless presidential elector litigation

One year ago, December 19, 2016, an unprecedented number of faithless electors intentionally cast (or attempted to cast) votes for candidates other than those they pledged to support, either Donald Trump or Hillary Clinton. Congress ultimately decided to count all the electoral votes as cast.

But some of these faithless (or would-be faithless) electors sued, and the litigation remains ongoing. Much like my tracking of "natural born" citizen lawsuits, I thought I'd share the status of faithless elector litigation.

California: an elector wanted to cast a vote for someone other than Hillary Clinton and Tim Kaine but ultimately voted for them.

Vinzenz Koller: lawsuit filed, Koller v. Brown (N.D. Cal. 2016-cv-07069), motion to dismiss granted Apr. 20, 2018

Colorado: two electors threatened to vote for candidates other than Hillary Clinton and Tim Kaine but ultimately voted for them. A third attempted to vote for John Kasich, but his vote was not counted, he was removed for failure to act.

Michael Baca, Polly Baca, & Robert Nemanich: lawsuit filed, Baca v. Colorado Department of State (D. Colo. 17-cv-01937), motion to dismiss granted Apr. 10, 2018, appeal filed (10th Cir. 18-1173), argued Jan. 24, 2019; reversed, Aug. 20, 2019.

Minnesota: an elector attempted to vote for Bernie Sanders instead of Hillary Clinton and was replaced.

Muhammad Abdurrahman: complaint dismissed as moot (D. Minn. 16-cv-04279); appeal filed (8th Cir. 16-4551), Abdurrahman v. Swanson, affirmed Sept. 12, 2018.

Washington: four faithless electors were each fined $1000 for casting votes for candidates other than Hillary Clinton and Tim Kaine. The state administrative appeals are here.

Robert Satiacum: administrative order became final June 13, 2017.

Levi Guerra, Esther John, & Peter Chiafalo: federal lawsuit (W.D. Wash. 16-cv-01886) voluntarily dismissed; state administrative appeal to Thurston County Superior Court, Docket No. 17-2-02446-34; Guerra v. State Office of Administrative Hearings, affirmed, Dec. 8, 2017; appeal filed with Supreme Court (No. 953473), brief filed Aug. 10, 2018, argued Jan. 22, 2019; affirmed, May 23, 2019.