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Teacher Loses Case as Supreme Court Backs State Sanctions for Rogue Electors

By Mark Walsh — July 06, 2020 4 min read

Nevada high school government teacher Micheal Baca says he is disappointed with Monday’s U.S. Supreme Court decision that states may use sanctions to enforce an elector’s pledge to support his or her state’s popular vote winner for president in the Electoral College.

“I don’t think this interpretation was correct,” said Baca, a 28-year-old teacher at Chaparral High School in Las Vegas. “Now this opens up a bigger bag of worms. If electors don’t have a role, if they are virtual rubber stamp, then why do we have this Electoral College?”

As we reported in May, Baca is not merely a teacher with a special interest in civics: He was a litigant in one of the two cases the justices heard on the issue.

Baca was living in Colorado in 2016, pursuing a master’s degree in education and driving for Uber. He was chosen by the state Democratic Party for the slate of people who pledge to vote in the Electoral College for the party’s presidential and vice presidential nominees if that ticket wins the state’s popular vote.

Republican Donald Trump won the election, but Democrat Hillary Clinton won Colorado, which made Baca an elector. He and Bret Chiafalo, of Everett, Wash., hatched a plan to try to convince 37 electors in states that Trump won to vote for someone else in the Electoral College, which under their plan would send the election to the U.S. House of Representatives.

The plan fizzled, but Baca, Chiafolo and a handful of other Democratic electors tried to cast their Electoral College ballots for someone other than Clinton as a small protest.

Colorado officials rejected Baca’s vote for Republican John R. Kasich, removed Baca as an elector, and referred him for a perjury prosecution because he had signed an oath to follow state law.

Baca wasn’t prosecuted, but he joined a lawsuit challenging state sanctions for “faithless electors.” In Washington state, Chiafolo and a few other electors were allowed to cast ballots for others, but they were later fined $1,000. They sued as well.

The Supreme Court heard arguments in the Washington and Colorado cases in May as part of the historic telephone session due to the coronavirus pandemic.

On Monday, the court ruled 9-0 in Chiafolo v. Washington (Case No. 19-465) that states may enforce an elector’s pledge to vote for the candidate who wins the popular vote in that state. The Colorado case faced a quirk—Justice Sonia Sotomayor is friends with one of the other faithless electors in that state, so she sat out the case. That resulted in an unsigned opinion in Colorado Department of State v. Baca (No. 19-518) that reversed a federal appeals court ruling in favor of Baca and the other rogue Colorado electors “for the reasons stated in” the Chiafolo decision.

In Chiafolo, Justice Elena Kagan wrote the majority opinion, signed by seven of her colleagues, that state election law has evolved to reinforce the idea that electors would support the choice of a state’s electorate, and not vote based on their own independent judgment.

“Washington’s law, penalizing a pledge’s breach, ... reflects a tradition more than two centuries old,” Kagan said. “In that practice, electors are not free agents; they are to vote for the candidate whom the state’s voters have chosen.”

Kagan’s opinion includes references to the Broadway show “Hamilton,” the TV show “Veep,” and single-candidate elections in the old Soviet Union.

Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito Jr., Sonia Sotomayor, Neil M. Gorsuch, and Brett M. Kavanaugh joined her opinion.

Justice Clarence Thomas filed an opinion concurring in the outcome, joined in part by Gorsuch, offering a different rationale.

Baca, who moved to Nevada after 2016 and began teaching in the Clark County, Nev., school system, said in the interview that he was disappointed that the Colorado case was relegated to the short, unsigned opinion, because he believed his sanction of being removed as an elector presented a slightly different issue than the $1,000 fine in the Washington case.

“I think they sidestepped a critical question—can a state remove an elector after voting has begun?” Baca said. “In my case, the state prevented me from voting as I intended, and they didn’t allow my vote to be transmitted.”

The rogue electors had argued in the cases that electors needed some flexibility after the popular election in case the winning candidate died or became incapacitated.

“We do not dismiss how much turmoil such an event could cause,” Kagan wrote in a footnote, but said some states already give electors discretion in that situation and others would likely release their electors in the event of such a death.

Baca said he hopes that even with the defeat for faithless electors, a larger debate over the Electoral College will gain new momentum.

He is looking forward to the next school term, whether students are back in the classroom or still learning remotely, when he can teach lessons about presidential elections and the role of the Electoral College, and describe his own small role in the debate.

“I’m relieved this is done,” he said. “It’s going to be great to teach the history of this.”

A version of this news article first appeared in The School Law Blog.

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