Jamba Juice to Supreme Court: Electoral College voter and his conscience

Micheal Baca was working at Jamba Juice and driving for Uber and Lyft, just trying to get by. He didn't plan on becoming a central figure in a test of one of America’s foundational political institutions.

But then he was chosen as a member of the Electoral College, the creaky mechanism, established by the Constitution, that actually names the nation’s chief executive. 

As an official elector for Colorado in the 2016 presidential election, Mr. Baca tried to cast his ballot for someone other than Hillary Clinton, who won the state’s popular vote. Election officials replaced him, citing state law.

So he became party to a federal lawsuit meant to establish the bounds of electors’ freedom. An appeals court ruled in his favor last August. The issue could soon land in the Supreme Court, as 22 states have joined Colorado in urging high court justices to review the 10^th Circuit appeals court decision.

The issue arises at a time when the Electoral College is already under scrutiny. In two of the past five elections, the candidate who lost the national popular vote has won the presidency, due to unequal distribution of electors among the states.

With a likely contentious 2020 election looming, states now want clarity on the so-called “faithless elector” question. Can individual electors vote for whomever they think best, or must they vote for the candidate state voters choose? The answer could affect the stability of the U.S. system in a close election – and perhaps the perceived legitimacy of the Electoral College itself.

“The basic situation is that the Supreme Court has never ruled about whether states can restrain the freedom of electors,” says Alexander Keyssar, the author of the forthcoming book, “Why Do We Still Have the Electoral College?” and a Harvard University history professor.

Origins and first crisis

From the beginning, the Electoral College was not a meticulously crafted plan. At the Constitutional Convention the Founders of the U.S. appointed a special committee to deal with a thorny problem: how to select a president.

“It was called the Committee on Unfinished Parts,” says Professor Keyssar. “The committee came up with the design of the Electoral College kind of at the last minute, just before they were adjourning.”

The design was, in essence, a midpoint between direct election of the nation’s chief executive by eligible voters, and selection by Congress. Voters would pick elite citizens, known as electors, who in turn would actually choose the person they thought best for the job.

It was the system that best preserved the compromises that had already been made about representation and power in Congress, says Professor Keyssar.

And while the Founders came to a solution in the summer of 1787, after the retirement of President George Washington, the creation of parties caused dissension in the original Electoral College system.

“Not long after it was created,” says Professor Keyssar, “the system malfunctioned.”

Under the original system, the top two electoral vote recipients were elected president and vice president. This created problems. In 1796, members of different parties became president and vice president. In the next election, in 1800, members of the same party received the same number of electoral votes.

“The 12th Amendment emerged out of that crisis,” says Professor Keyssar, of the election of 1800. Passed by Congress in 1803, the amendment modified the original system by separating the elections of president and vice president, and created the Electoral College system in place today – a system increasingly under pressure.

Colorado electors and the 2016 presidential election

Today Mr. Baca teaches U.S. government. Last year, he taught U.S. history.

But in 2016, when he was selected as a Democratic elector from Colorado after participating in the state’s county conventions, that was still in his future. At the time he was not a member of the state's political elite.

Mr. Baca did not even meet the age requirement of 25 to serve in the House of Representatives when he was selected by the state’s Democratic Party to serve as an elector. He’d filled out paperwork applying for the position after representing his House district in Colorado’s 2016 Democratic caucuses.

In order to be seated as an elector, Mr. Baca pledged to the state that he would vote for Mrs. Clinton. But he also felt that the election of Donald Trump would be dangerous for the country.

When Colorado’s electors gathered to cast their Electoral College votes on December 19, 2016 – normally a ceremonial, rubber-stamp process – Mr. Baca acted. He scratched “Hillary Clinton” off his pre-printed ballot and wrote in “John Kasich,” the Republican former governor of Ohio, who he viewed as a compromise to then-President-elect Trump.

His ballot was removed by a state elections official and he was replaced as an elector in a chaotic scene in the state capitol. After the election, Mr. Baca and two other electors filed suit, but the U.S. District Court in Colorado ruled that the other two electors lacked standing to sue.

Only Mr. Baca, who tried to cast his ballot and was removed as an elector, had standing, the court ruled in August of this year.

“The state’s removal of Mr. Baca and nullification of his vote were unconstitutional,” read the court’s ruling.

On Oct. 16, Colorado asked the Supreme Court to overturn the case.

A Washington state court judge in May upheld the state’s $1,000 fines on three Democratic electors who voted for Colin Powell despite their original pledge to vote for the state’s winner of the popular vote, Hillary Clinton.

This discrepancy in rulings makes it more likely the Supreme Court will step in to give a final legal answer. It also comes at a time when people are already calling for Electoral College reform.

The National Popular Vote Interstate Compact, explained

The National Popular Vote Interstate Compact is an agreement between 15 states and the District of Columbia to require, by state law, electors to vote for the winner of the national popular vote, regardless of the state’s outcome. The 16 jurisdictions currently in the compact comprise 196 electoral votes.

It is intended to ensure that the winner of the national popular vote also wins in the Electoral College. The Electoral College has picked a president who did not win the national popular vote in two of the last five elections – President George W. Bush in 2000, and President Donald Trump in 2016.

The compact does not take effect until enough states join to pass the 270 electoral vote threshold of victory. Colorado’s Democratic Gov. Jared Polis signed a bill to join the compact in March of this year.

“The Compact ensures that every vote, in every state, will matter in every presidential election,” claims the website of the nonprofit National Popular Vote organization.

But not every expert is comfortable with a mechanism that is in essence designed to skirt the way the Founders set up the electoral system.

Because the Electoral College is written into the Constitution, changing the system without a constitutional amendment is “in principle problematic,” says Amel Ahmed, a professor of political science at the University of Massachusetts, Amherst.

“Democracy is an agreement to play the game by a certain set of rules and changing those rules has to go hand in hand with changing the agreement,” says Professor Ahmed. “How you get reform actually matters a lot.”

What comes next?

On Sunday, at a campaign rally in Iowa, Democratic presidential hopeful Sen. Elizabeth Warren called for the abolition of the Electoral College. 

“I want to get rid of it,” Ms. Warren said. “My goal is to get elected and then be the last American president elected by the Electoral College.” 

Other Democratic hopefuls, such as Sens. Bernie Sanders and Cory Booker, Mayor Pete Buttigieg, and businessman Tom Steyer also have said they favor abolishing the Electoral College.

For now, in the United States, the 538 individuals that make up the Electoral College pick the president. Envisioned as elite intermediaries, over the centuries they have evolved into a rubber-stamp formality. For Mr. Baca, he says he was not trying to change the system, the Constitution, or go to the Supreme Court.

“I was trying to prevent someone dangerous taking office,” he says. “This is just a byproduct of the initial intent.”

Like the man at the center of the case, the Supreme Court might have to navigate the subtle distinction between U.S. history and government.

“You have a history which says that that electors are just messengers, they’re not supposed to use their own judgment,” says Professor Keyssar. “But I think the Constitution makes it pretty clear that they can use their own judgment.”

“The system hasn’t worked that way in more than 200 years,” says Professor Keyssar.

Mr. Baca says, “It’s important that the courts address what electors can and cannot do,” acknowledging that he disregarded state law.

“I felt it was in violation of the supremacy clause in the Constitution,” he says.

But the question remains: If electors are permitted to vote their conscience, do the people have a say? If an election produces an Electoral College tie, or a margin of a few votes, so-called “faithless” electors could swing the result, pushing the nation into unexplored legal and political territory.