The founders put the Electoral College system in place, in part, because many of them were opposed to the idea of electing presidents by direct popular vote. As a result, they entrusted a limited number of elite electors with the responsibility of electing presidents, a process that takes place in December during presidential election years.
As the 2020 general election approaches, the Supreme Court is poised to issue a decision in Colorado Department of State v. Baca, which will decide whether “faithless electors” are obligated to fulfill their pledges and vote for the winner of the popular vote in their states. (A faithless elector is a member of the Electoral College who votes in contradiction to popular vote outcomes in their state.)
The Baca case emerged from the 2016 presidential election, in which Donald Trump defeated Hillary Clinton by winning a majority of the 538 Electoral College votes despite losing the popular vote by a margin of nearly 3 million. During that election, Michael Baca, an elector from Colorado, made it clear that he would not vote for Clinton (who had won the popular vote in his state) during the final official Electoral College vote. Despite being threatened with prosecution, Baca crossed out Hillary Clinton’s name from his ballot and wrote in the name of then-Ohio Governor John Kasich, who had run for the Republican presidential nomination in 2016, but was not on the general election ballot. Subsequently, Baca was removed from his post as an elector by Colorado’s secretary of state and replaced with a faithful elector who voted for Clinton. He then sued the Colorado Department of State claiming his removal was unconstitutional.
Colorado argues that it has the right to require its electors to vote for Clinton, in concert with how the majority of the people of the state voted — a requirement that reinforces strong democratic norms. Proponents of this position ask why people should bother to vote at all if electors can vote for someone who wasn’t even on the general election ballot.
But the constitutional thicket in this case is a bit more complicated, and the 12th Amendment, which is designed to prevent electoral deadlock, could prove pivotal in the eventual decision. The amendment was adopted after the contested election of 1800, in which Thomas Jefferson and Aaron Burr received an equal number of Electoral College votes, making it unclear which candidate had been elected president. (Before the 12th Amendment was passed, the winner of the Electoral College became the president, while the candidate with the second highest number of electoral votes became vice president. The 12th Amendment requires the president and vice president to be elected together as a two-person ticket.)
Baca’s lawyers contend that his position as an elector is created by the Constitution itself, and thus that he cannot be restrained by the state of Colorado to vote in any particular way. The 10th Circuit Court of Appeals agreed with Baca that “the use of elector to describe both congressional and presidential electors lends significant support to our conclusion that the text of the Twelfth Amendment does not allow states to remove an elector and strike his vote for failing to honor a pledge to vote for the winner of the popular election. Instead, the Twelfth Amendment provides presidential electors the constitutional right to vote for the candidates of their choice for President and Vice President.” In other words, the court interpreted the text and history of this part of the Constitution to allow for faithless electors.
The Supreme Court may find Baca’s argument compelling because several of the justices in the conservative majority fancy themselves originalists. And a fair reading of the original meaning of the 12th Amendment would allow Baca to vote his conscience as an elector regardless of how the rest of Colorado voted. If the Supreme Court rules in Baca’s favor and with the same reasoning as the 10th Circuit, voters should hold on to their hats during the 2020 election.
With enough faithless electors, it is possible that the candidate who appears to lose the presumptive Electoral College headcount could end up as president-elect. And given that Baca was trying to vote for John Kasich, who was not even on the general election ballot in 2016, it is possible that enough faithless electors could vote in 2020 to elect someone other than Donald Trump or Joe Biden as president.
If the Supreme Court reverses the 10th Circuit, it is likely to conclude that faithless electors can be removed by states given the potential for unprecedented election outcomes that were not intended by quotidian American voters. But the Court will have to turn the Constitution into textual pretzels to get that result. Alternatively, the Court may sidestep all of the thorny issues raised by Baca by stating that the case is moot. After all, the 2016 election is over.
The views expressed are the author’s own and not necessarily those of the Brennan Center.