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Pepperdine | Caruso School of Law

Derek Muller Authors Amicus Brief in 10th Circuit Case, Baca v. Colorado Department of State

July 5, 2018 | Professor Derek Muller has authored an amicus curiae brief in the U. S. Court of Appeals for the 10th Circuit case, Baca v. Colorado Department of State. The case involves the constitutionality of a Colorado law that purports to bind electors by requiring them to vote for the Presidential and Vice Presidential candidates that received the highest number of votes at the preceding general election.

Summary of Argument:

The text of the Constitution offers little about the scope of state authority to regulate presidential electors. And there is little judicial precedent about the proper scope of authority of states regulating presidential electors. See, e.g., Ray v. Blair, 343 U.S. 214 (1952). But there are extensive practices in states and in Congress—including practices at the time of the ratification of the Twelfth Amendment—that may help this Court determine the liquidated meaning of these constitutional provisions. Cf. THE FEDERALIST No. 37, at 236 (James Madison) (J.E. Cook ed., 1961).

These state and congressional practices reveal three conclusions. First, presidential electors have no right to anonymity when casting their ballots. Second, states have the power to replace presidential electors and levy fines on presidential electors, even after those electors have been selected. Third, Congress holds the power to scrutinize and even reject the electoral votes. In 2017, however, Congress counted Colorado's electoral votes, and this Court has been asked to revisit a decision reserved to the judgment of Congress. When this Court decides this case, it should interpret the Twelfth Amendment through the practices of the states and of Congress.

The complete amicus brief may be found here