Colorado AG argues Supreme Court case that will play role in presidential election

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DENVER (KDVR) — Colorado Attorney General Phil Weiser says he feels good about the case he argued in front of the U.S. Supreme Court Wednesday morning, arguing for the state’s right to replace electors who do not vote according to the state’s popular vote choice.

“I think we made our case well. The justices understand it. I believe we will see a ruling that upholds Colorado’s law,” he said.

Both Weiser and Jason Harrow – the attorney who argued against Weiser and the executive director of the nonprofit, Equal Citizens – said they expect the court to decide the case in mid-summer, ahead of the presidential election.

The case pertains to the constitutionality of the state’s actions in 2016 after it replaced a Colorado elector for attempting to vote for someone who didn’t represent the state’s popular vote.

At the time, the elector, Micheal Baca, was trying to prevent now-President Donald Trump from being elected, so he attempted to use his electoral vote on a different Republican candidate, John Kasich, rather than choosing the state’s popular choice, Hillary Clinton.

The state replaced Baca ahead of the vote.

“He tried to use the mechanism of the Electoral College – which is still in the Constitution and an important part of the Constitution – to give voice to the millions of Colorado voters who voted for a Democratic slate and did not want to see Donald Trump become president. And, at that point, he had an option: do you try and do something? Or do you do nothing? And the state is basically saying, ‘You can only do nothing,’ and Micheal Baca is saying, ‘No. I can try and do something because I have a right to vote,’” said Harrow.

“The U.S. Constitution gives the states the exclusive authority to select electors. This authority includes removing a bribed elector, one who engages in rebellion, or one who would perpetrate a bait-and-switch on the people of their state by voting contrary to a binding pledge and against the voters’ wishes,” said Weiser. 

Harrow said electors should have the right to vote as they see necessary, even if it defies their original promise to the state.

“I understand the intent of the state to make sure every vote counts,” said Harrow. “But the question is: what’s the vote for? I just don’t think Attorney General Weiser properly responded to the idea that the vote under our Constitution is for presidential electors not directly for president.”

Harrow wondered what would happen if a candidate were to pass away after the popular vote took place but prior to the Electoral College vote.

“If Colorado is permitted to undo the human check that has been baked into the system of presidential selection, there really could be a chaotic outcome,” he said during his closing arguments. 

Weiser said states should be allowed to have plenary authority over electors and called the power “fundamental” to the state’s election system.

“If the state Legislature loses that power and all electors have to be free-agents, it would upend our election system,” he said. “We cannot toss out 230 years of constitutional tradition in favor of a treacherous experiment. We urge the Court to reject this dangerous time bomb and avoid a potential constitutional crisis during the 2020 elections.”

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