Always read Derek on the Electoral College:

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….

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.