Potential Supreme Court Case Concerning the Electoral College Could Be Big for Third Parties

Back in August the 10th Circuit Court of Appeals ruled in favor of three Colorado Presidential Electors that were considered Hamilton Electors who tried to cast their votes for John Kasiach instead of Hillary Clinton in an attempt to take the election away from Donald Trump.

Colorado and many other states have statutes that bind their Presidential Electors to the popular vote cast in that state. In these states and most all the electors are chosen by the political parties and the candidate that wins that state has their party members cast votes in the Electoral College.

During the 2016 Electoral College a movement was afoot to deny Donald Trump the 270 votes needed to be elected. Colorado was a state that Hillary Clinton had won and the 9 votes were required by state law to be awarded to her. A group of faithless electors across the country conceived a plan to violate their state laws and vote for John Kasiach as a way to toss the election to the House of Representatives and have Kasiach chosen President instead of Trump.

When the Colorado Electoral College convened in Denver the Secretary of State of Colorado threatened the electors that if they tried to vote against the will of the people in the state they would be removed from their position and replaced. Two of the Electors gave in, but one tried to vote for Kaisach and was replaced by an alternate.

The State of Colorado has now filed a Writ of Certiorari with the Supreme Court to rule on the following legal questions:

  1. Whether a presidential elector who is prevented by
    their appointing State from casting an Electoral
    College ballot that violates state law lacks
    standing to sue their appointing State because
    they hold no constitutionally protected right to
    exercise discretion.
  2. Does Article II or the Twelfth Amendment forbid a
    State from requiring its presidential electors to
    follow the State’s popular vote when casting their
    Electoral College ballots.

Once the court grants the Writ, and we expect them to, the case could have a dramatic impact on the Electoral College and future elections. Third Parties will benefit from the faithless electors being allowed under the Constitution to vote for whomever they want for President and Vice President.

Under Article II and the Twelfth Amendment the electoral college is not bound by state law, but rather federal. A state cannot and should not pass a statute that binds federal officers to vote for the winner of the state. That was never the intention of Presidential elections when the Constitution was ratified. The founding fathers didn’t trust ordinary people to select a President so they put that power into the hands of the Electoral College. Colorado violated the Constitutional rights of these faithless electors by bounding them to state law. They are officers under the Constitution not the Secretary of States office in Denver.

If the Supreme Court rules in favors of the Electors the doors will open to third party electoral votes and breaking the control that the two major parties have had on American politics for centuries. Getting Electoral votes and sending elections to the House will change the scope of of the political process and actually give a third party a shot to win the White House. It would break the stigma that the two parties control this country.

We will continue to monitor this case once the Supreme Court grants the Writ of Certiorari.

1 reply »

  1. Not exactly true.

    I was an Elector for the LP in Colorado in 2016.

    There is a state law that binds Colorado Electors to the winner of the state popular vote.

    Electors are chosen by party. They are not federal officials. The state Secretary of State has no authority to interfere with that internal selection.

    The First Amendment allows Electors to be unbound. Always been the case. The 10th Circuit ruling only reinforces that.


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