A ruling by a U.S. Appeals Court in Colorado on Friday in a case filed by Democratic electors has helped pave the way for Republican electors to cast their votes against Donald Trump when the Electoral College meets on Monday. In a footnote appended to its ruling the 10th Circuit Court of Appeals suggested that state officials are constitutionally barred from removing faithless electors – those who vote against the winner of their state – once voting has begun.
In their order the court’s three judges said that any attempt by Colorado’s Secretary of State to remove faithless electors “after voting has begun” would be “unlikely in light of the text of the Twelfth Amendment,” which covers the functioning of the Electoral College. That interpretation is excellent news for the movement to convince Republican electors to block Donald Trump, as it provides a solid legal backing for violating state laws that require immediate removal of electors who break with their pledged vote. Such laws are in place in 28 states, many of which were won by Trump.
The lawsuit filed in Colorado ultimately aimed to overturn that state’s version of the pledged elector law, a move that was denied by the court even as it offered the interpretation that electors would be legally protected from removal once voting had actually begun. Jason Wesoky, a lawyer for the two electors who filed the suit, said he may pursue Supreme Court review of the matter. Any such review, however, would likely not occur until after the College’s vote on Monday. The most relevant piece of the ruling, however, is the declaration that there is no legal basis for removing electors once voting has actually begun regardless of the state faithless elector laws.
“State officials need to think hard and think twice about the constitutionality of interfering with the electors’ votes once that process begins,” Wesoky said. “We think this order is a pretty good indication that [Colorado Secretary of State Wayne] Williams and others like him violate the Twelfth Amendment when, after electors vote, they discount the vote.”
The court’s order could help convince more Republican electors to vote against Trump on Monday, a move that many had been hesitant to make for legal reasons. So far only one Republican elector, Chris Suprun of Texas, has officially decided to break with his pledged vote. However, a number of Democratic electors and their backers have been working relentlessly to convince 37 Republican electors – the number needed to force the College into a deadlock – to vote against Trump.
One of the leaders of that effort is Harvard Law Professor Larry Lessig, who has claimed that as many as 30 Republican electors are prepared to vote against Trump. Friday’s ruling could thus be influential in convincing those electors that they will suffer no legal punishment for following their consciences and rebuffing a dangerous and unqualified candidate. Such a policing role is indeed the very function the Electoral College was designed to exercise.
In addition to Friday’s ruling a 1952 Supreme Court decision and a recent legal article by University of St. Thomas law professor Michael Stokes Paulsen support the cause of faithless electors. That article concludes that “constitutionally, the electors may vote for whomever they please.” Moreover, both Lessig and the law firm Durie Tangri have offered pro bono legal support to faithless electors. Taken together these legal precedents provide a more than sufficient backing for any Republican electors willing to make the moral choice and block a proto-fascistic oligarch who lost the popular vote by almost three million votes from becoming the most powerful man in the world. For the sake of the nation, we can only hope that enough Republican electors will be convinced to vote in the best interest of the nation rather than of their increasingly hate-driven party.
James DeVinne is a student at American University in Washington, DC majoring in International Service with a focus on the Middle East and South Asia. He is a founding member of Occupy Baltimore and interns at the Tahrir Institute for Middle East Policy.