State officials may be constitutionally prohibited from removing members of the Electoral College who vote against their state's popular winner once the presidential race balloting begins on Monday, according to a footnote on an order in a Colorado lawsuit on Friday.
Earlier this week, a lawsuit filed by Democratic electors Polly Baca and Robert Nemanich was struck down in a Colorado court, after the two sought a ruling on whether they can switch their votes away from Clinton and to an alternate candidate, in hopes of defeating President-elect Donald Trump, reports Politico.
However, after the lower court ruled all nine members of Colorado's Electoral College must either vote for Cliton or resign their positions, Baca and Nemanich appealed the decision to the 10th U.S. Circuit Court of Appeals, which heard the case on Friday.
The three-member federal panel Friday also denied their request to stop Colorado from enforcing its law, Politico reports, saying they did not lodge a constitutional case. But with their footnote, the justices did point the way to a legal argument that could work in their case.
"This is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs' position, but it is not our role to make those arguments for them," their comment said, quoting a 1952 Supreme Court opinion and a recent legal article.
Under laws in place in Colorado and other states, officials can demand electors be removed immediately if they go against their state's popular vote, but in the footnote, the appellate court said that would be "unlikely in light of the text of the Twelfth Amendment."
"State officials need to think hard and think twice about the constitutionality of interfering with the electors' votes once that process begins," said Jason Wesoky, a lawyer for the Colorado electors. "We think this order is a pretty good indication that [Colorado Secretary of State Wayne] Williams and others like him violate the Twelfth Amendment when, after electors vote, they discount the vote."
The ruling was made by Nancy Moritz and Carolyn McHugh, both appointed to the bench by President Barack Obama and Mary Beck Briscoe, who was appointed by former President Bill Clinton.
Wesoky said he may seek yet another review in the case from the Supreme Court, but that may not happen until after Monday, when the group's 538 members are to make their decision on the presidency official.
Twenty-eight other states also have laws binding their delegates to their state's popular winners.
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