But that’s not the issue the Court will consider today. Baca concerns five Democratic electors—four in Washington and one in Colorado—who, after Donald Trump’s victory in the electoral votes on Election Night, decided not to vote for Hillary Clinton (as they had promised). Instead, they picked other candidates. On December 19, the day fixed by law for the electors to vote, three Washington electors voted for Colin Powell and one voted for the Native American activist Faith Spotted Eagle; Micheal Baca, the Colorado elector, attempted to vote for former Ohio Governor John Kasich. Baca’s vote was never counted. Following a state court order, Wayne Williams, the Colorado secretary of state, removed him and required the state’s remaining electors to choose another elector, who voted for Clinton. The Washington electors, following Washington’s state law, were served with $1,000 fines. (Two Republican electors in Texas additionally bolted, one to former Representative Ron Paul and another to Kasich.)
Baca and three of the Washington electors went to separate courts to challenge the removal and the fines. Washington’s state supreme court upheld the fines; but a panel of the U.S. Court of Appeals for the Tenth Circuit decided, 2-1, that Colorado’s law was an overreach—an attempt to exercise a power over electors that the Constitution did not grant.
That was an interpretation of the oracular language of Article II, which says, in part,
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.
This language is modified by the Twelfth Amendment, passed in 1804 after the Electoral College had already misfired twice:
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President ….
The Tenth Circuit majority argued that the text “grants the states plenary power to appoint their electors, [but] it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote.”
The two decisions meant there was now a split. The Supreme Court granted review and consolidated them for argument. On Wednesday, the “faithless” electors will be represented by the formidable professor Lawrence Lessig of Harvard—and his presence is important in understanding what was going on. The four electors in this case did not scatter their votes because they had soured on Clinton, the Democratic nominee. Instead, their votes were part of a scheme, promulgated by Lessig and others, called the “Hamilton Electors.” The idea was based on the famous language of “Federalist No. 68,” in which Alexander Hamilton, writing as “Publius,” argued that the electoral-vote system was a wonderful way to pick presidents. Electors, Publius wrote, would be “a small number of persons” who “will be most likely to possess the information and discernment requisite to such complicated investigations.” They would act “under circumstances favorable to deliberation,” and thus ensure that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”