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Federal appeals court says Secretary of State violated “faithless elector’s” civil rights by nullifying his vote in 2016 presidential election

DENVER–The U.S. Court of Appeals for the Tenth Circuit ruled yesterday that former Secretary of State Wayne Williams violated the constitutional rights of presidential elector Michael Baca by removing him as an elector and discarding his vote when he refused to vote for Hillary Clinton in the 2016 general election.

Baca, his wife Polly Baca and Robert Nemanich, three of Colorado’s nine electors, refused to obey a Colorado statute requiring electors to cast their votes for the state’s popular vote winner.  The three were instead determined to cast their votes for John Kasich as President rather than Hillary Clinton, who won the state’s popular vote.

In April, 2016, Nemanich contacted Williams to ask what would happen if they refused to vote for Clinton. “Secretary Williams responded that “his ‘office would likely remove the elector and seat a replacement elector until all nine electoral votes were cast for the winning candidates,’” says the ruling. “Secretary Williams also warned that the elector would likely face perjury charges.”

When Baca, the first to vote of the three, marked his ballot for Kasich, he was removed from office by Williams and replaced. Ms. Baca and Nemanich then voted for Clinton against their wishes, fearing prosecution.

The three electors subsequently filed a lawsuit in late 2016 asking the court to issue an injunction against enforcement of the statute, C.R.S. 1-4-304(5), claiming it violates Article II and the Twelfth Amendment of the U.S. Constitution, and claiming that the Colorado Department of State violated their civil rights.

A U.S. District Court judge eventually denied the injunction and dismissed the case saying that the three had no standing to sue. The three appealed the dismissal.

The Tenth Circuit Court ruled yesterday that the only claim that survived all the court actions was Mr. Baca’s claim that his civil rights had been violated by Williams when he was removed as an elector and his vote was thrown out.

The 128-page ruling held that Baca’s dismissal and nullification of his vote violated the U.S. Constitution because once an elector has been chosen by the state and the process of voting by electors begins, the State has no further input or control over that process. Therefore, Williams had no legal authority to remove Baca.

The ruling went into great detail about the constitutional principles involved, dismissing two of the plaintiffs for lack of standing, and dismissing Baca’s “prospective remedy” of an injunction while allowing his civil rights complaint to stand.

The details of the arguments over standing of the electors to sue are arcane legal matters of federal court practice, but the upshot is that the Court upheld only Baca’s claim that it was unlawful for him to be dismissed as an elector once voting had begun.

The functioning of the Electoral College once set in motion, said the court, is a federal matter created by the federal constitution and therefore is beyond the reach of the states.

But this is not the end of the matter, as a recent 8-1 decision out of the Washington State Supreme Court came to exactly the opposite conclusion. This sets up a conflict that makes the issue ripe for review by the United States Supreme Court.

“The split decisions in the Colorado and Washington cases create a strong possibility that the Supreme Court will take up the issue,” said David Kopel, author of an amicus curiae brief filed by the Independence Institute* in the Colorado case. “It’s important that the Court provide a definitive resolution in its 2019-20 term, before the election. For today, we’re gratified that the Tenth Circuit looked carefully at original meaning and constitutional structure, as our brief had urged.”

Williams agrees. He says if the ruling stands and electors are free to vote as they please it raises the specter of corruption. “If Colorado has no say in how electors vote, a candidate could bribe electors to vote for him and the state could do nothing about it,” he said.

“I’m very concerned that the majority of the court invalidated the votes of 2.9 million Coloradans in the last election,” Williams told Complete Colorado. “I agree with the plaintiffs in this case that we need the U.S. Supreme Court to take this case up and decide the matter. It’s too important not to have the Supreme Court review it.”

The case was remanded to the District Court for “further proceedings consistent with this opinion.”

Baca has asked for $1 in nominal damages for the violation of his rights, and presumably he will get that.

Unanswered is the question of how much further the District Court can go during remand. Can it rule the Colorado statute unconstitutional and throw it out, or will that have to await another lawsuit? Also unanswered is the actual impact of the Circuit Court’s ruling, which did not explicitly invalidate Colorado’s law.

“We are still analyzing the decision and what might happen back in the district court, so I don’t have a definite answer for you there,” said Jason Harrow, Executive Director and Chief Counsel for Equal Citizens and the plaintiff’s legal counsel.

*Complete Colorado is a project of the Independence Institute

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