In the latest of a string of faithless elector litigation arising from the 2016 presidential election, the 10th Circuit issued a decision finding that Colorado wrongly removed an elector pledged to support Clinton after he attempted to cast a vote for John Kasich. (Disclosure: I filed an amicus brief in support of neither party but calling for affirming the district court result below; the bulk of the brief focused on whether ballots must be secret, an issue the court did not reach.)

The question is a hard one, I admit, but the majority opinion suffers from a number of weaknesses. I’m not entirely certain of whether the case still presents a case or controversy, as the dissenting opinion points out; indeed, remarkably, the majority never cites the Eighth Circuit opinion on a removed faithless elector from Minnesota, which concluded the claim was moot. My guess is that if the case is taken en banc or to the Supreme Court, it could well be tossed on procedural grounds.

The opinion also does what many analyzing the Electoral College do: confuse ought and is. Federalist 68, for instance, describes how Alexander Hamilton envisions the Electoral College will function; but that says very little about what the state may do to regulate its function. Indeed, we see very quickly that Hamilton’s “ought” never comes to fruition, and the Electoral College never functioned as designed. Additionally, I’m not convinced that the role of electors before the Twelfth Amendment is necessarily the same as after—particularly given that states had begun to regulate the behavior of electors, such as authorizing their replacement in their absence or in the neglect of duty.

But, as I note, these are hard questions, and it is quite common to see ought/is confusion pertaining to the power of the state over presidential electors. I want to focus on two particular weaknesses of the opinion. First, the role of Congress; and second, the role of elector “choice.”

Late in the opinion (pp. 100-101), the Court notes that Congress has historically counted the votes of faithless electors, citing a string of instances, an “uninterrupted history of Congress counting every anomalous vote cast bay an elector.” That’s both irrelevant and false.

It’s irrelevant, because, until 2016, never had an elector cast a vote in a state that had a law with a mechanism that authorized that elector’s replacement. Undoubtedly, Congress believed that electors could be faithless—they repeatedly counted votes of faithless electors. But could a state cabin the faithless elector—that is, replace a faithless elector? That question was never raised in a count before 2016, so Congress’s past act says little about state power.

And it’s false, because, in 2016, Congress did count the electoral votes for both a replacement elector in Colorado and a replacement elector in Minnesota—meaning, Congress twice ratified the state’s power to replace a faithless elector.

Granted, no one objected to either vote cast, so it’s hard to say that Congress has expressly ratified it. But there were a dozen attempted protests lodged during the 2016 counting of electoral votes, ranging from concerns about voter suppression to Russian interference, and Vice President Joe Biden, presiding over the joint session to count electoral votes, found each objection out of order (because while members of the House continued to object, no Senator joined any objection, which the Electoral Count Act of 1887 requires before Congress will entertain an object). I argued in the Wall Street Journal in 2017 that this is Congress’s prerogative.

So, Congress counted Colorado’s replacement elector. A federal court has now held that Colorado lacked the power to replace that elector. Was Congress wrong? Should it have ignored that replacement elector’s vote and docked an electoral vote from Hillary Clinton? Were the other eight electors wrong to sign a list saying that the state cast nine votes for Hilary Clinton? The court would never say so, given that it claimed it was only handling a claim for nominal damages. But the suggestion that a court might tell Congress it wrongly counted an electoral vote is, in my view, significant.

Second, the court phrases its holding in various ways, but the crux is something like this: “we conclude the states may not interfere with a presidential elector who exercises discretion in casting votes for the President and Vice President of the United States.” Elsewhere: “they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.” Still elsewhere: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”

As the facts lay out, “Despite taking the oath, Mr. Baca crossed out ‘Hillary Clinton’ from his presidential ballot and wrote in ‘John Kasich.’” The form of the ballot is replicated here.

The power of the elector to choose leaves some unanswered questions. First and foremost is Colorado’s ballot. In any other election in the United States, this ballot would be thrown out. Why? The ballot has one option, one name, and does not authorize write-ins—this is essentially a spoiled ballot. So did the state print the ballot wrong? Does the state lack the power to print the ballot in presidential elections? Must the state count the write-ins of electors?

What if the elector’s choice is to not vote? Could the elector be replaced then? Or, to cast a blank vote? Could the elector be replaced then?

What about if the electors vote for an ineligible candidate, as the court acknowledges is a limitation on electors in n.27 of the opinion? Does the state have the remedy to replace them—even though there’s no “express” authority in the Constitution that would give the state that power?

Colorado requires presidential candidates to file ahead of the election as a condition of ballot access for their slate of electors. John Kasich never did. Could the state restrict the electors’ decision to only to choose among those candidates who filed before the election?

John Kasich also expressly disclaimed that he was a candidate. Could the state restrict the electors’ discretion to only candidates who want to serve in the office—that is, to prevent the state’s electoral vote from being thrown away?

(Professor Michael Morley identifies still other good questions about the scope of the opinion—in particular, could the Secretary of State simply ignore the vote rather than replace him? Or file a competing slate of electors with Congress to let Congress sort it out?)

Each of these are challenging questions, in my view. But the court’s opinion would seem to elide over all of them. That’s because it quickly moves past the state’s power to “direct” the “manner” of “appoint[ing]” electors and concludes that the state lacks any power once the elector starts to act. I’m not entirely persuaded—that is, I think the state probably has some power to replace electors (including those who don’t show up, or those who fail to act), and perhaps even replace electors who cast illegal votes (e.g., for a non-citizen). And the Uniform Law Commission has recognized some of the subtleties in its Faithful Presidential Electors Act. Electors can, after all, resign from office. The Act suggests that when the elector casts a vote for someone other than the candidate he has pledged to support, he has resigned from office and created a vacancy.

Nevertheless, the breadth of this opinion—a suggestion that there’s a virtually unfettered choice, or at least that the state can’t fetter the choice—is what’s the most remarkable part of it. The contours of that choice are not defined, and the power of the state to act with electors who do a variety of things listed above may well be foreclosed by the court’s underdeveloped opinion.

But I want to close with one thought about the opinion’s impact. For decades, electors and states have had an uneasy kind of truce. Electors typically aren’t faithless, and states have wielded the threat of replacement even if they haven’t actually replaced them. This opinion, however, collapses that truce. Electors are now instructed that they can vote for whomever they want, and replacement is not an option. While that might have been true decades ago, too, before any replacement laws were on the books, one wonders whether electors will be more inclined to stray in 2020—particularly given fawning attention from disgruntled voters. True, these handful of electors didn’t change the outcome of the election, and in a closer election it’s less and less likely that electors are faithless, as their votes are more significant and their ability to protest carries greater weight. But I wonder about what this might yield in closer elections. Political parties have significant power to choose presidential electors—they may be scrutinizing their choices much more carefully in 2020.