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This Supreme Court Case Could Have Major Consequences for Presidential Races

There could be a significant change to how the Electoral College chooses winners, writes Brennan Center Fellow Ciara Torres-Spelliscy.

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.