A version of this article first appeared in the Daily Caller.
Presidential electors may vote their conscience. States may not dictate how they vote, and state officials may not remove them for failing to obey orders. In Baca v. Colorado Department of State, a federal appeals court so ruled. The Independence Institute filed a brief in the case defending presidential electors, and the court’s opinion cited that brief.
The court’s holding protects the Electoral College’s role as a key constitutional safeguard.
In 2016, Colorado voters chose Micheal Baca as a presidential elector. Like other members of the Electoral College, Baca journeyed to his state capital on Dec. 19 to vote for president and vice president.
Baca is a Democrat, and earlier in the year he pledged to vote for Hillary Clinton. As the campaign season wore on, however, he concluded that neither Clinton nor Donald Trump would be acceptable presidents. He decided to cast his ballot for Republican Gov. John Kasich of Ohio, hoping other electors would do the same.
Historically it is relatively rare for presidential electors to change their minds, but we traditionally recognize their right to do so. In 2016 six Clinton electors and one Trump elector were recorded as voting for other persons.
However, some states have laws requiring that all state electors vote for the individual winning a plurality (not necessarily a majority) of the popular vote in that state. Colorado has such a law. Because Clinton won a popular plurality in Colorado, when Baca tried to cast his electoral ballot for Kasich, state officials purported to remove him from office and replace him with someone who agreed to vote for Clinton.
Baca sued Colorado officials, claiming the law was unconstitutional and his vote should have been counted. The federal appeals court agreed. There was a dissent — but only on procedural grounds, not on the merits of the case.
To understand why the court was correct, you must know something of how the Constitution’s presidential election procedure was designed to work.
The Constitution’s framers sought to answer a variety of needs while avoiding a variety of dangers. In respect for our federalist system, the Constitution gives state legislatures authority to decide how presidential electors are chosen. All state legislatures have vested the choice of electors in the people of the state. In deference to democratic principles, those electors represent the people of their state. But according to principles of deliberative government, electors ultimately may decide which candidate would be best for the country. Electors are like legislators in that they represent constituencies but they may use their best judgment when voting.
There is a mountain of historical evidence for these conclusions. The appeals court cited only a small part of it.
The framers modeled the Electoral College on indirect election systems then prevailing in Scotland and Maryland, in which elector discretion was pivotal. Moreover, founding-era dictionary definitions refer to “electors” as people who make choices and “ballots” as always being secret ballots.
In addition, the founders often referred to elector discretion, as did members of Congress when debating the 12th Amendment, which modified the presidential election procedure in other ways.
Colorado officials could muster little response to this evidence. Instead, they argued that because the Constitution gives the state legislature power to decide how electors are chosen, it also gives the legislature power to direct their votes. But power to control doesn’t necessarily follow from the power to appoint: The Constitution gives the president authority to appoint judges but not to dictate their decisions.
Colorado officials also claimed the state could control electors under the powers reserved to the state by the 10th Amendment. But as the court pointed out, that argument conflicts with established precedent. And it would allow state governments to elect the president — an approach the framers explicitly rejected.
This ruling is unlikely to change the fact that electors almost always honor pre-election pledges. But it will restore constitutional protections that could be crucial in unusual cases. For example, if a winning presidential candidate dies or becomes incapacitated after the people vote but before the electors vote, then the electors will be free to choose a suitable replacement. Similarly, electors may select a replacement if they unexpectedly learn the winning candidate committed a serious crime.
Some news outlets spun the court’s ruling as a victory for conservatives over progressives. Not true. Liberals brought the suit and conservatives and libertarians supported it. Neither side of the political divide was the winner. The winners were our Constitution and the people it protects.