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CASE STUDIES IN EMERGENCY ELECTION LITIGATION
Faithless Electors
Baca v. Hickenlooper (Wiley Y. Daniel,
D. Colo. 1:16-cv-2986), Chiafalo v. Inslee
(James L. Robart, W.D. Wash. 2:16-cv-1886), and
Koller v. Brown (Edward J. Davila, N.D. Cal. 5:16-cv-7069)
After one party's candidate earned more votes in the 2016 presiden-
tial election, but the other party's candidate earned more Electoral
College votes, electors in three states won by the popular-vote victor
filed federal complaints to relieve electors from voting as pledged. No
federal court granted any plaintiff immediate relief.
Subject: Voting irregularities. Topics: Electoral College;
intervention; laches.
The 2016 presidential election resulted in a majority of votes for Hillary Clin-
ton, but Donald Trump earned a majority of Electoral College votes.' Electors
in three states that Clinton won filed unsuccessful federal lawsuits seeking ju-
dicial rulings freeing electors from voting as pledged.
Colorado
Two members of the Electoral College who were pledged to vote for the Dem-
ocratic nominees for President and Vice President who prevailed in Colorado
on November 8, 2016, filed a federal complaint in the District of Colorado on
December 6 seeking relief from legal obligations preventing the Electoral Col-
lege from being a deliberative body.2 The electors sought, for example, an op-
portunity to vote for a consensus candidate other than Hillary Clinton, who
prevailed in Colorado, or Donald Trump, who was expected to earn the most
votes in the Electoral College and whom the plaintiffs regarded as unfit.' With
their complaint, the electors filed a motion for a temporary restraining order
and a preliminary injunction.'
On Friday, December 9, Judge Wiley Y. Daniel granted a motion by Colo-
rado's Republican Party to intervene to protect its candidates' ultimate victo-
ries.' On Monday, Judge Daniel granted Trump's motion to intervene to pro-
tect the Electoral College process.6
1. See, e.g., Michael Finnegan, Electors Stick to Script, Seal Trump as President, L.A. Times,
Dec. 20, 2016, at Al.
2. Complaint, Baca v. Hickenlooper, No. 1:16-cv-2986 (D. Colo. Dec. 6, 2016), D.E. 1
[hereinafter Baca Complaint]; see John Frank, Anti-Trump Electors Sue State, Denver Post,
Dec. 7, 2016, at 2A; Sean Sullivan & Ed O'Keefe, Electors for Trump Urged to Have Second
Thoughts, Wash. Post, Dec. 7, 2016, at A4.
3. Baca Complaint, supra note 2, at 3-4.
4. Motion, Baca, No. 1:16-cv-2986 (D. Colo. Dec. 6, 2016), D.E. 2.
5. Intervention Order, id. (Dec. 9, 2016), D.E. 15; Transcript at 3, id. (Dec. 12, 2016, filed
Dec. 14, 2016), D.E. 23 [hereinafter Baca Transcript]; Intervention Motion, id. (Dec. 9, 2016),
D.E. 11.
6. Intervention Order, id. (Dec. 12, 2016), D.E. 18; Baca Transcript, supra note 5, at 3;
Intervention Motion, Baca, No. 1:16-cv-2986 (D. Colo. Dec. 12, 2016), D.E. 16.
Federal Judicial Center 4/26/2018
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