The state of Colorado defended the constitutionality of a state law before the highest court in the nation this week, arguing it had the power to force Colorado members of the Electoral College to vote for Hillary Clinton in 2016.
Four weeks before the U.S. Supreme Court is set to hear oral arguments in a closely watched case regarding so-called “faithless electors,” the Colorado Attorney General’s Office laid out its case in a 65-page brief Wednesday.
“States are authorized to oversee and remove electors to advance our democratic principles and protect our system of stable governance,” wrote Attorney General Phil Weiser‘s office.
Under state law, Colorado’s members of the Electoral College must cast their ballots for the presidential and vice presidential candidates who receive the most votes in Colorado. If they don’t, they can be removed and replaced. The constitutionality of that punishment is being challenged in this case.
The case stems from 2016, when Micheal Baca, a Colorado member of the Electoral College, attempted to vote for John Kasich, a Republican former governor of Ohio, rather than Democrat Hillary Clinton, whom Colorado had chosen. Baca’s decision was part of a failed and quixotic effort to lure Republican electors to a consensus choice and block Donald Trump from becoming president.
Baca was removed from his post, a punishment later deemed unconstitutional by the 10th Circuit Court of Appeals. His attorney, Lawrence Lessig of Harvard Law, has argued Electoral College voting cannot be controlled by a state government.
The state of Colorado disagrees, relying in large part on Article II of the U.S. Constitution, which allows state legislatures to appoint members of the Electoral College “in such manner as the legislature thereof may direct.” That language allows states to remove and punish electors, the state of Colorado claims.
“Without the state oversight that the removal principle provides, electors would be free to violate their oath, take a bribe, or cast a ballot for a constitutionally ineligible candidate. Such an outcome would deprive the states’ voters of their voice in the selection of the president,” the attorney general’s office wrote in its brief.
“Permitting the states to enforce those lawful pledges is not only constitutional but necessary to protect the true character of our nation’s democratic principles and system of stable governance.”
The case is set to be heard April 28, though it’s unclear if the high court will meet then, due to the coronavirus pandemic. Both sides — Lessig and the state of Colorado — have urged justices to issue an opinion this year and grant clarity before the 2020 presidential election in November.
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