II, § 1, to vote as he may choose [emphasis added] in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.In his dissent, Justice Robert H. Jackson, joined by Justice William O. Douglas, wrote: No one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.For the 2016 election, Washington state law RCW 29A.56.320 required electors, selected by their party, to vote for the candidate of their party during the presidential election, or otherwise be subject to a US$1,000 civil penalty.
At the first trial at the Thurston County Superior Court in 2017, the judge ruled against the constitutional argument and deemed the fines permissible.
The named plaintiff in the case was former Democratic state senator Polly Baca of Denver, who had indicated she would cast her vote for an alternative Republican candidate.
They challenged Colorado's law on the basis of their constitutional rights under the Twelfth and Fourteenth Amendments, as well as the Supreme Court's prior ruling in Ray v. Blair that left open whether states can compel electors to vote as specified with penalties.
Both sides filed a joint motion seeking the court to render a decision on the merits of the case, with Colorado claiming to waive immunity from suit.
"[24][25] Circuit Judge Mary Beck Briscoe did not take a position on the merits of the case but dissented on mootness and standing grounds.
The ruling immediately invalidated faithless elector laws in states within the 10th Circuit, specifically in New Mexico, Oklahoma, and Wyoming.
Instead of seeking an en banc review at the Tenth Circuit,[26] Colorado filed a petition for writ of certiorari to the Supreme Court on October 16, 2019.
[31] However, on March 10, Justice Sonia Sotomayor announced that she would recuse herself from the Colorado case, citing her prior friendship with the respondent Polly Baca.
As a separate result, the Supreme Court reversed the consolidation of the two cases in a decision that Sotomayor had no part in due to her connection to Baca.
[33] Observers to the arguments for both cases believed the justices were concerned with the chaos that allowing faithless electors to vote how they wanted, or to be influenced by bribes, would have on the election process.
[34] In light of oral arguments, some legal scholars thought that the Court may overly weight the potential negative consequences of the constitutional provisions for electors and allow for their original meaning to be overridden.
"[37][38] Thomas wrote a concurrence that was partially joined by Justice Neil Gorsuch, adding that "nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people.
[40] The Court's ruling was widely seen as a welcome outcome in the interest of avoiding potential election chaos, but some also argued that it reaffirmed the need for Electoral College reform.
[41][42] The electors in both cases were represented by Lawrence Lessig, who founded the group Equal Citizens that is pursuing litigation to seek democratic election reforms and raise awareness.
[43] In the latter case, the decision was seen to strengthen the claim that states may choose to appoint electors based on the national popular vote.
[51][52] Some legal scholars have questioned the Court's reliance on the appointment power of the states under Article II to justify control over electors, noting that similar Constitutional text that gave state legislatures the power to appoint senators (prior to the 17th Amendment) was never understood to include the power to control how they vote, and that removal and replacement of an elector, as in Baca, directly conflicts with the plain meaning of the text of the 12th Amendment, which mandates that once an elector casts a vote, it must be counted and included on a list that is sent to Congress.