The 10th U.S. Circuit Court of Appeals hinted that punishing members of the Electoral College for failing to vote for a particular candidate for president and vice president may be unconstitutional.
The comments from a three-judge panel came by way of a footnote in a dispute between two Colorado electors and state officials who threatened to unseat them if they did not cast their ballots for former Secretary of State Hillary Clinton and Sen. Tim Kaine. The two electors previously told the Colorado secretary of state that they hope to broker a compromise among fellow electors to elect a consensus candidate, and block Donald Trump’s ascension to the presidency.
Though the three-judge panel, composed entirely of Democratic appointees, sided with Colorado in the dispute, they did include a footnote on page ten of the ruling which appeared to tepidly endorse the idea that the Twelfth Amendment prohibits states from punishing or removing electors. The court writes:
This is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs’ position. For example, there is language in the Twelfth Amendment that could arguably support the plaintiffs’ position. But it is not our role to make those arguments for them.
Professor Andy Grewal of the University of Iowa School of Law noted the court was essentially dinging the plaintiff’s lawyers.
In arguing that members of the Electoral College should be able to act as “free agents,” the plaintiffs pointed to arguments made by Alexander Hamilton in the “Federalist Papers.” In a separate footnote, the court said that the plaintiffs should have made an argument based on the text of the Twelfth Amendment, instead of using external sources. Generally, the federal courts only consult such sources when they are unable to determine the meaning of the Constitution from its plain language. (RELATED: In Defense Of The Electoral College)
If the court’s unofficial position on this question is correct, it would likely imperil so-called “faithless elector” laws around the country, which states pass to punish electors who vote for candidates they prefer, instead of those who won the popular vote in their respective states.
An appeal to the Supreme Court could follow, though it is extremely unlikely the justices would intervene before the electors gather to cast their votes.
The Electoral College will meet in state capitals across the country to cast their ballots Monday, Dec. 19.
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