A Colorado elector’s punishment for voting Bernie instead of Hillary may be unconstitutional
In the aftermath of Election Day, a substantial amount of excited conjecture erupted over the potential power of electors to defect — that is, to vote against the results of the general election in their state.
Those hoping for a resultant Clinton miracle win in the Electoral College vote were disappointed Monday afternoon when Donald Trump was officially elected after just four Democratic electors successfully defected. And in Colorado, at least one elector unsuccessfully did so after casting a vote for Bernie Sanders instead of Hillary Clinton.
Colorado went on to file all nine of its electoral ballots for Clinton because the elector who voted for Sanders was replaced in accordance with state law, as Fox 31 Denver reported. A Colorado judge had recently ruled that state electors who didn’t vote for Clinton could face up to a year in jail and a $1,000 fine.
Thirty states have laws that restrict electors, though they differ in how much they restrict them and whether they can be replaced if electors defect to “vote their conscience.” And those laws that do in some way mandate a replacement may violate the Constitution; the single Supreme Court case related to elector freedoms didn’t clearly address the issue.
“It’s going to be a big mess — the procedures are different everywhere,” Harvard University law professor Lawrence Lessig told VICE News when asked about the ability of states to revoke an elector’s vote and issue a replacement.
Just days before voting began Monday, a federal appeals court rejected a challenge by two Colorado electors to the state’s replacement mechanism. While the judges ruled that the duo didn’t make a compelling constitutional argument, they acknowledged that a compelling argument did exist. In a footnote, the judges said that they “deem such an attempt [of a state to replace an elector] unlikely in light of the text in the Twelfth Amendment.”
The Twelfth Amendment lays out the rules governing the election of the president and vice-president via electors, including the fact that each elector gets one vote. If an elector were to cast his or her vote, it’s not at all clear that a state could then move to nullify that vote.
“It’s not clear that an actual vote by an actual elector can be, as it were, clawed back by a state and the replacement elector vote put in the stead of the other elector,” said James Rogers, associate professor of political science at Texas A&M University.
The sole Supreme Court case addressing elector freedoms, 1952’s Ray v. Blair, involved potential Alabama elector Edmund Blair, who refused to pledge his support for the Democratic Party’s nominees for president and vice president before being certified as an elector. The Court found that requiring people to sign such a pledge in order to become electors did not violate the Constitution. The justices, however, “refused to address whether the pledges were enforceable, reserving that issue for a latter day,” said Pepperdine University associate professor of law Derek Muller.
In other words, while state parties can require electors to vow to vote in a certain way, they may not have the authority to actually enforce that vow in a court of law. And as Rogers pointed out, even if they could, it’s not clear they can then change the vote the elector cast.
“Even if it could work that way, the original elector would have a legal claim,” Rogers said. “Not counting his or her vote presents a ‘case or controversy’ that courts could consider.”