Is Colorado Acting Strategically in Seeking Supreme Court Review of the Faithless Elector Case?

Colorado has filed this cert petition in the faithless elector case, making it the second case raising the issue to reach the Supreme Court within a month. (Here is my coverage of the Washington state case, and my earlier Slate piece,  The Coming Reckoning Over the Electoral College: A ploy to bring the issue to the Supreme Court could backfire.)

Derek Muller sensibly asks if Colorado really wants to win this case. If it did, Mueller suggests, it would first seek 10th Circuit en banc review and argue that there are good procedural reasons for rejecting the panel decision and thereby wiping out the panel decision as precedent. Derek says there may be strategic reasons why Colorado is acting this way, but he’s not sure what they might be.

Here’s one possibility I don’t think Derek covers: Colorado wants definitive Supreme Court precedent allowing states to block faithless electors. If Colorado went to the 10th circuit and won on procedural grounds, that would not resolve the merits of barring faithless electors in the 10th circuit, it would not resolve the issue nationally, and it would make it less likely the Supreme Court would take the Washington case, because there would no longer be a split among the courts.


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