A U.S. Appeals Court appears to have left open a narrow path for more members of the Electoral College to ditch Hillary Clinton and Donald Trump.
In a footnote appended to an order issued late Friday in a Colorado lawsuit, a three-judge panel of the 10th Circuit Court of Appeals suggested state officials may be constitutionally barred from removing electors once they’ve started voting.
In their order, the judges said any attempt by Colorado Secretary of State Wayne Williams to remove electors "after voting has begun" would be "unlikely in light of the text of the Twelfth Amendment."
That interpretation could significantly undercut state laws across the country that demand immediate removal of electors who vote against the popular vote winner in their state. It’s a silver lining for a handful of Democratic electors urging their colleagues to cast votes against Donald Trump when the Electoral College meets on Monday.
"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 two Colorado electors who filed the lawsuit. "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."
A spokeswoman for Williams was not immediately available for comment.
The three judges on the panel were Barack Obama-appointees Nancy Moritz and Carolyn McHugh, along with Bill Clinton-appointee Mary Beck Briscoe.
Their ruling was, on the surface, another defeat for the Democratic electors making a desperate, long-shot attempt to stop the election of Donald Trump. The judges denied a request by two of those electors — Colorado Democrats Polly Baca and Robert Nemanich — to prevent the state from enforcing a law that requires them to cast their electoral vote for Hillary Clinton, the winner of the statewide popular vote.
Wesoky said he may pursue Supreme Court review of the matter but not on an "emergency basis," which means there may not be final resolution ahead of Dec. 19, when the Electoral College’s 538 members are slated to cast the official vote for president.
The electors’ lawsuit is part of a broader strategy to undermine 28 similar elector "binding" laws across the country, including several in states where Republican electors say they’re legally bound to support Donald Trump.
The Appeals Court rejected the Baca and Nemanich’s call to immediately halt the enforcement of Colorado’s law, concluding the electors failed to lodge a compelling constitutional argument. But they agreed one probably exists — and pointed to a potential legal argument that could work.
"By failing to point us to any language in the Constitution that would support their position, we conclude they have failed to meet their burden," the judges wrote.
"This is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs’ position," they added, citing a 1952 Supreme Court opinion and a recent legal article. "But it is not our role to make those arguments for them."
That article, by University of St. Thomas law professor Michael Stokes Paulsen, notes "constitutionally, the electors may vote for whomever they please."
The court’s aside was celebrated by advocates for freeing delegates from restrictive binding laws.
"BOMBSHELL: Last night the [10th] Circuit unanimously came very close … to endorsing Hamilton’s reading of the Constitution’s text," tweeted Harvard University constitutional law expert Laurence Tribe.
The court also appeared to open the door to a significant rethinking of the Electoral College process.
The Democratic electors argued that any law forcing them to vote for Clinton should be treated as an unconstitutional "qualification" on their service. They cited Supreme Court precedent that prohibits similar qualifications on members of Congress.
The Appeals Court judges rejected this reasoning, calling forced voting a "duty" rather than a "qualification." But they added that requiring electors to take pledges in order to earn their positions — "like the ones that the plaintiffs in this case made to vote for the Democratic nominees for President and Vice-President" — would be considered a qualification.