On November 8, 2016, voters went to the polls to elect the next president of the United States. However, that election did not, in fact, decide the outcome of the presidential race. Rather, it elected 538 electors who then cast their own votes for president on December 19, 2016, and not all of them voted for either Donald Trump or Hillary Clinton.
On Tuesday, the 10th Circuit Court ruled that members of the Electoral College may vote for whomever they please, even if the electors contravene the results of their state’s popular vote. Specifically, the Court ruled that Colorado unconstitutionally canceled the vote of “faithless elector” Michael Baca (a faithless elector is a member of the electoral college who does not vote for the candidate who won their state or, in the case of Maine and Nebraska, congressional district). While Hillary Clinton won Colorado, Baca instead voted for former Ohio governor John Kasich, a violation of Colorado Revised Statute §1-4-304(5).
While many states have laws requiring electors to vote for the winner of the state’s popular vote, the Constitution does not explicitly address those laws. This ruling marked the first time a federal appeals court has ruled on state laws that legally bind electors. Here’s an excerpt from the court’s decision:
"We conclude the state's removal of Mr. Baca and nullification of his vote were unconstitutional. Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right."
The Court relied on FairVote’s summary of faithless electors, noting that there have been 167 faithless electoral votes certified and counted in the history of the United States: "Indeed, we are aware of no instance in which Congress has failed to count [a faithless] vote, or in which a state—before Colorado—has attempted to remove an elector in the process of voting, or to nullify a faithless vote. And on only one occasion has Congress even debated whether [a faithless] vote should be counted.”
The Supreme Court may review the issue before the 2020 election. Harvard law professor Lawrence Lessig commented, “Whatever side you’re on, whether you think it’s a good or bad idea for electors to have freedom, the question ought to be resolved before there is a constitutional crisis.”