Teacher’s Own Case as ‘Faithless’ Electoral College Voter Goes Before Supreme Court

By Mark Walsh — May 12, 2020 4 min read
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Most Americans learn about the Electoral College in 8th grade or high school civics class and probably don’t give it much thought afterward.

But one high school government teacher is putting his own stamp on lessons about the system set forth in Article II of the U.S. Constitution for indirect election of the president and vice president.

Micheal Baca now teaches at Chaparral High School in Las Vegas, but he was a Colorado resident during the 2016 election. His own drama-filled experience as an elector goes before the U.S. Supreme Court on Wednesday, along with cases involving other electors in Colorado and Washington state who were removed as electors or punished for not casting their ballots in keeping with the popular vote in their states.

“I never expected that six years after getting out of high school, I would be one of 538 people electing the president of the United States,” said Baca, now 28.

He was a politically active supporter of Sen. Bernie Sanders in 2016, becoming a Sanders delegate to the Democratic National Convention. He also volunteered for the obscure role of potential elector. Baca 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.

Hillary Clinton won Colorado and Washington state, as well as the national popular vote in the 2016 election. But with Donald Trump’s electoral victory, Baca 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. Baca and Chiafalo believed that would send the election to the U.S. House of Representatives. The House, they hoped, would coalesce around a more moderate Republican than Trump.

The necessary 37 defectors didn’t materialize, and by the time electors met in their state capitals in December 2016 to cast their Electoral College ballots, Baca and a few others in Colorado and Washington were intent on voting for someone other than Clinton just as a small form of protest.

Long story short: Baca crossed off Clinton’s name and wrote in then-Ohio Gov. John R. Kasich Jr., who had unsuccessfully sought the Republican presidential nomination. Colorado’s secretary of state, who had warned Baca and two other electors that state law required them to vote for the popular vote winner. The others ended up voting for Clinton, while officials rejected Baca’s vote, removed him as an elector, and referred him for a perjury prosecution because he had signed an oath to follow state law.

“It was definitely stressful,” Baca said. He was never prosecuted. But he joined in a lawsuit challenging state punishments for so-called faithless electors. (Chiafalo and two others in Washington state were allowed to cast their Electoral College ballots for Colin Powell, but they were later fined $1,000 each by the state.)

The electors argue that they have a right to vote with discretion without interference or sanction by a state. Colorado and Washington contend that several provisions of the U.S. Constitution give states broad power to select and control their electors.

Since 2016, Baca worked as a flight attendant and as a political organizer before passing the PRAXIS teacher test and becoming a teacher in Las Vegas. He is finishing his second school year, and as the electors’ case has moved through the legal system, he has shared the story with his students in small doses.

“I don’t want to overemphasize it,” he said. “I try to get them to understand we live in a representative democracy.”

The teacher said that when he discusses his desire to eliminate the Electoral College, “I am speaking to them as Micheal Baca the private citizen.”

He was looking forward to traveling to Washington when the arguments in Colorado Department of State v. Baca and Chiafalo v. Washington were originally scheduled for April. But the coronavirus pandemic postponed those arguments and closed the Supreme Court building to the public.

On Wednesday, the justices will hear those arguments as the last cases that are part of the unusual May telephone session.

Baca, like other teachers across the nation, has been instructing his students remotely since March. He informed his classes where they could listen to the arguments, but he didn’t make it a required assignment.

“I’m going to have my computer up and engage with my students if they are listening and have any questions as the arguments go along,” he said.

Baca said he couldn’t guarantee how long he would stay in teaching.

“I kind of stumbled into it,” he said. “My real passion is politics. I’m still interested in making my mark and making the country more democratic.”

Photo: Micheal Baca speaks outside the federal courthouse in Denver in December 2016 when electors were seeking clarification of Colorado’s requirement that they vote for the winner of the state’s popular vote in the presidential election that year. (AP Photo/David Zalubowski)

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