CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/3/2023 1

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), Koller v. Brown (Edward 

J. Davila, N.D. Cal. 5:16-cv-7069), and Abdurrahman 

v. Dayton (Paul A. Magnuson, D. Minn. No. 0:16-cv-4279) 

After one party’s candidate earned more votes in the 2016 presidential election, but the other party’s candidate earned more Electoral 

College votes, electors in four 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. But in 2019, 

a court of appeals ruled that the Constitution requires states to allow electors to vote as they please. The Supreme Court disagreed. 

Subject: Voting irregularities. Topics: Electoral College; 

intervention; laches. 

The 2016 presidential election resulted in a majority of votes for Hillary Clinton, but Donald Trump earned a majority of Electoral College votes.1

 Electors in four states that Clinton won filed unsuccessful federal lawsuits seeking judicial rulings freeing electors from voting as pledged. A later lawsuit 

resulted in a ruling by a court of appeals that electors retain the right to vote 

as they please, but the Supreme Court reversed that holding. 

Colorado 

Two members of the Electoral College who were pledged to vote for the 

Democratic 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 College from being a deliberative body.2 The electors sought, for 

example, an opportunity 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.3

 With their complaint, the electors filed a motion for a temporary 

restraining order and a preliminary injunction.4

On Friday, December 9, Judge Wiley Y. Daniel granted a motion by Colorado’s Republican Party to intervene to protect its candidates’ ultimate vic1. See, e.g., Michael Finnegan, Electors Stick to Script, Seal Trump as President, L.A. 

Times, Dec. 20, 2016, at A1. 

2. Complaint, Baca v. Hickenlooper, No. 1:16-cv-2986 (D. Colo. Dec. 6, 2016), D.E. 1 

[hereinafter Baca Complaint]; Baca v. Colo. Dep’t of State, 935 F.3d 887, 903 (10th Cir. 

2019); 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. 
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2 Federal Judicial Center 11/3/2023 

tories.5 On Monday, Judge Daniel granted Trump’s motion to intervene to 

protect the Electoral College process.6

At a hearing on the afternoon of December 12, Judge Daniel denied the 

electors immediate relief.7

 Four days later, the court of appeals denied the 

electors’ motion for an injunction pending appeal.8

 On December 21, Judge 

Daniel issued an opinion explaining his December 12 ruling.9 He noted that 

the plaintiffs were seeking immediate relief that would change rather than 

preserve the status quo.10 As to the merits, “I agree with Defendants’ contention that the presidential electors waived their First Amendment rights when 

they accepted the nomination to be presidential electors.”11

The electors voted for the Democratic nominees on December 19.12 They 

filed an amended complaint on July 18, 2017,13 and six days later the parties 

stipulated dismissal of Trump as a party.14 Judge Daniel granted a voluntary 

dismissal of the whole case in August.15

Washington 

Also pleading the presumptive Electoral College victors as unfit, two Washington electors filed a federal complaint in the Western District of Washington on December 8, 2016, seeking relief from a legal obligation to vote for the 

Democratic nominees.16 With their complaint, they filed a motion for a temporary restraining order and a preliminary injunction.17

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. 

Judge Daniel died on May 10, 2019. Federal Judicial Center Biographical Directory of 

Article III Federal Judges, www.fjc.gov/history/judges. 

6. Intervention Order, Baca, No. 1:16-cv-2986 (D. Colo. 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. 

7. Baca Transcript, supra note 5, at 3; Minutes, Baca, No. 1:16-cv-2986 (D. Colo. Dec. 12, 

2016), D.E. 19; Baca, 935 F.3d at 903; see Amended Minute Order, Baca, No. 1:16-cv-2986 

(D. Colo. Dec. 8, 2016), D.E. 10 (scheduling the hearing); see also Brian Eason, Will Electors 

Revolt?, Denver Post, Dec. 19, 2016, at 1A; John Frank, Electors’ Injunction Request Rejected, 

Denver Post, Dec. 13, 2016, at 1A. 

8. Opinion, Baca v. Hickenlooper, No. 16-1482 (10th Cir. Dec. 16, 2016); Baca, 935 F.3d 

at 903. 

9. Opinion, Baca, No. 1:16-cv-2986 (D. Colo. Dec. 21, 2016), D.E. 27 [hereinafter D. Colo. Baca Opinion], 2016 WL 7384286. 

10. Id. at 4; Baca Transcript, supra note 5, at 9. 

11. D. Colo. Baca Opinion, supra note 9, at 8. 

12. 2016 Electoral College Results, www.archives.gov/electoral-college/2016 [hereinafter 

Electoral College Vote Certificates] (compilation of the certificates of Electoral College 

votes). 

13. Amended Complaint, Baca, No. 1:16-cv-2986 (D. Colo. July 18, 2017), D.E. 55. 

14. Stipulation, id. (July 24, 2017), D.E. 56. 

15. Order, id. (Aug. 2, 2017), D.E. 58; see Baca v. Colo. Dep’t of State, 935 F.3d 887, 904 

(10th Cir. 2019). 

16. Complaint, Chiafalo v. Inslee, No. 2:16-cv-1886 (W.D. Wash. Dec. 8, 2016), D.E. 1; 

Chiafalo v. Inslee, 224 F. Supp. 3d 1140, 1142–43 (W.D. Wash. 2016); see Jim Brunner, Two 
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On December 9, Judge James L. Robart set the case for hearing on the afternoon of December 14.18

On December 12, Washington’s Republican Party moved to intervene “to 

protect its interest in ensuring its electors are faithful,”19 and Trump moved 

to intervene to protect the Electoral College process.20 Deferring a ruling on 

intervention, Judge Robart ordered the putative intervenors to appear at the 

December 14 hearing.21

At the hearing, Judge Robart again deferred ruling on the intervention 

motions and denied the electors immediate relief.22 He concluded that it 

would be unlikely for First Amendment freedoms to extend to the casting of 

electoral votes by electors who voluntarily chose their rule-governed role.23

Two days later, the court of appeals determined that the electors had not 

“shown a likelihood of success or serious questions going to the merits” and 

denied an emergency motion for an injunction pending appeal.24

Trump withdrew his motion to intervene on December 21,25 and Judge 

Robart granted intervention to Washington’s Republican Party on February 

2, 2017.26 The case was resolved by stipulated dismissal on March 15.27

On December 19, 2016, the Western District of Washington plaintiffs 

were two of seven faithless electors: for President, three in Washington, including the plaintiffs, voted for Colin Powell, and one voted for Faith Spotted 

Eagle; in Texas, one voted for Ron Paul, and one voted for John Kasich; and 

one in Hawaii voted for Bernie Sanders.28

Washington State Electors Sue Over Law on Election Results, Seattle Times, Dec. 13, 2016, at 

B3. 

17. Motion, Chiafalo, No. 2:16-cv-1886 (W.D. Wash. Dec. 8, 2016), D.E. 2. 

18. Order, id. (Dec. 9, 2016), D.E. 7; see Brunner, supra note 16. 

19. Intervention Motion at 1–2, Chiafalo, No. 2:16-cv-1886 (W.D. Wash. Dec. 12, 2016), 

D.E. 9. 

20. Intervention Motion, Id. (Dec. 12, 2016), D.E. 13. 

21. Order, id. (Dec. 13, 2016), D.E. 24. 

22. Chiafalo v. Inslee, 224 F. Supp. 3d 1140, 1142, 1148–49 (W.D. Wash. 2016); Transcript at 3–4, 36–41, Chiafalo, No. 2:16-cv-1886 (W.D. Wash. Dec. 14, 2016, filed Dec. 23, 

2016), D.E. 38 [hereinafter Chiafalo Transcript]; Docket Sheet, id. (Dec. 8, 2016) (D.E. 27); 

see Finnegan, supra note 1. 

23. Chiafalo Transcript, supra note 22, at 38–39. 

24. Order, Chiafalo v. Inslee, No. 16-36034 (9th Cir. Dec. 16, 2016). 

25. Intervention Withdrawal, Chiafalo, No. 2:16-cv-1886 (W.D. Wash. Dec. 21, 2016), 

D.E. 36. 

26. Intervention Order, id. (Feb. 2, 2017), D.E. 40. 

27. Stipulation, id. (Mar. 15, 2017), D.E. 44. 

28. Electoral College Vote Certificates, supra note 12; Chiafalo v. Washington, 591 U.S. 

___, ___, 140 S. Ct. 2316, 2322 (2020); Baca v. Colo. Dep’t of State, 935 F.3d 887, 950 (10th 

Cir. 2019); In re Guerra, 193 Wash. 2d 380, 384 & n.3, 441 P.3d 807, 808 & n.3 (2019); Notice, Chiafalo, No. 2:16-cv-1886 (W.D. Wash. Feb. 15, 2017), D.E. 41; see Rick Anderson, 

“Faithless Electors” Are Now Paying the Price, L.A. Times, Mar. 10, 2017, at A5; Jim Brunner, 

4 Washington State Electors Break Ranks, Cast Protest Votes as Trump Seals Victory, Seattle 

Times, Dec. 20, 2016, at A1. 
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On May 23, 2019, Washington’s supreme court affirmed $1,000 fines 

against the electors who voted for Powell as within the state’s authority to 

direct the manner and mode of appointing electors.29 The United States Supreme Court also affirmed the fines.30

California 

A California member of the Electoral College who was pledged to vote for 

the Democratic nominees filed a federal complaint in the Northern District 

of California on December 9 seeking relief from California statutes compelling him to vote for the California victors.31

On December 12, the elector filed a motion for a temporary restraining 

order and a preliminary injunction.32 That day, Judge Edward J. Davila observed that the notice requirements of Federal Rule of Civil Procedure 

65(b)(1) had not been met for a temporary restraining order, and he ordered 

service and briefing on the motion completed by 4:00 p.m. on December 

14.33 On December 15, Judge Davila scheduled a hearing for the following 

morning.34

California’s Republican Party and Trump moved on December 13 to intervene in the case.35 Trump withdrew his motion on December 20,36 and 

Judge Davila granted the Republican Party’s motion on January 3, 2017.37 On 

June 2, noting that Trump was no longer involved in the action, Judge Davila 

denied a December 16, 2016, pro se intervention motion by an attorney and 

his wife seeking, among other things, that Trump answer for the kidnapping 

of their son.38

29. Guerra, 193 Wash. 2d 380, 441 P.3d 807; Chiafalo, 591 U.S. at ___, 140 S. Ct. at 2323; 

see David Gutman, High Court Backs Fines for Rogue Electors, Seattle Times, May 24, 2019, 

at B6; see also Jim Brunner, Four State “Faithless Electors” Are Fined, Seattle Times, Dec. 30, 

2016, at B1. 

30. Chiafalo, 591 U.S. at ___, 140 S. Ct. at 2322–23; see Robert Barnes, States May Bind 

Electors to Popular Vote, Justices Decide, Wash. Post, July 7, 2020, at A1; Brent Kendall & Jess 

Bravin, Ban on “Faithless” Electors Upheld, Wall St. J., July 7, 2020, at A3; Adam Liptak, 

States Can Curb Elector Choices, Justices Affirm, N.Y. Times, July 7, 2020, at A1. 

31. Complaint, Koller v. Brown, No. 5:16-cv-7069 (N.D. Cal. Dec. 9, 2016), D.E. 1; Koller 

v. Harris, 312 F. Supp. 3d 814, 820 (N.D. Cal. 2018); Koller v. Brown, 224 F. Supp. 3d 871, 

875 (N.D. Cal. 2016). 

32. Motion, Koller, No. 5:16-cv-7069 (N.D. Cal. Dec. 12, 2016), D.E. 4; Koller, 312 F. 

Supp. 3d at 820. 

33. Order, Koller, No. 5:16-cv-7069 (N.D. Cal. Dec. 12, 2016), D.E. 10. 

34. Order, id. (Dec. 15, 2016), D.E. 31. 

35. Intervention Motion, id. (Dec. 13, 2016), D.E. 22 (candidate); Intervention Motion, 

id. (Dec. 13, 2016), D.E. 14 (party). 

36. Notice, id. (Dec. 20, 2016), D.E. 47. 

37. Order, id. (Jan. 3, 2017), D.E. 57; Koller, 312 F. Supp. 3d at 820. 

38. Order, Koller, No. 5:16-cv-7069 (N.D. Cal. June 2, 2017), D.E. 100; see Intervention 

Motion, id. (Dec. 16, 2016), D.E. 38; Docket Sheet, id. (Dec. 9, 2016) (showing several additional filings). 
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At the December 16, 2016, hearing, Judge Davila denied the elector immediate relief.39 Judge Davila acknowledged that the original plan for the 

Electoral College may have been for a collection of independent voters, but 

the Supreme Court had recognized in 1952 that modern electors were not 

unfettered.40

On December 19, 2016, the elector voted for the Democratic nominees.41

On April 20, 2018, Judge Davila dismissed an amended complaint, finding that the elector’s role in the 2016 election was moot, his role in future 

elections was speculative, and there could be no liability for the 2016 election, because “Plaintiff has not convincingly shown why it was clearlyestablished in 2016 that [California’s election code was] unconstitutional and 

could not be enforced.”42

Minnesota 

In Minnesota, an elector attempted to vote on December 19, 2016, for Bernie 

Sanders instead of Hillary Clinton, the Minnesota victor.43 Instead of counting the elector’s vote, Minnesota’s secretary of state selected an alternate elector, who voted for Clinton.44 The original elector filed a federal complaint in 

the District of Minnesota on December 19 challenging his replacement.45 The 

elector also filed on that day a motion for a temporary restraining order and 

a temporary injunction,46 a motion for summary judgment,47 and a motion 

for expedited briefing and hearing.48

Judge Paul A. Magnuson heard the case on Thursday, December 22.49 His 

first question was, “Why is this entire matter not moot?”50 On the following 

day, he denied the elector relief and dismissed the case.51 Because the Elec39. Transcript at 47, id. (Dec. 16, 2016, filed Dec. 16, 2016), D.E. 41; Koller, 312 F. Supp. 

3d at 820. 

40. Koller v. Brown, 224 F. Supp. 3d 871, 875–77 (N.D. Cal. 2016), appeal dismissed, Order, Koller v. Brown, No. 16-17283 (9th Cir. Dec. 21, 2016); see Ray v. Blair, 343 U.S. 214 

(1952). 

41. Electoral College Vote Certificates, supra note 12. 

42. Koller, 312 F. Supp. 3d 814; see Amended Complaint, Koller, No. 5:16-cv-7069 (N.D. 

Cal. Feb. 17, 2017), D.E. 83. 

43. Opinion at 2, Abdurrahman v. Dayton, No. 0:16-cv-4279 (D. Minn. Dec. 23, 2016), 

D.E. 22 [hereinafter D. Minn. Abdurrahman Opinion], 2016 WL 7428193; see Complaint at 

8, id. (Dec. 19, 2016), D.E. 1 [hereinafter Abdurrahman Complaint]; Transcript at 2–3, id.

(Dec. 22, 2016, filed Dec. 30, 2016), D.E. 281 [hereinafter Abdurrahman Transcript]. 

44. D. Minn. Abdurrahman Opinion, supra note 43, at 2; see Abdurrahman Complaint, 

supra note 43, at 8; Abdurrahman Transcript, supra note 43, at 3; see also Electoral College 

Vote Certificates, supra note 12. 

45. See Abdurrahman Complaint, supra note 43. 

46. Injunction Motion, Abdurrahman, No. 0:16-cv-4279 (D. Minn. Dec. 19, 2016), 

D.E. 5. 

47. Summary-Judgment Motion, id. (Dec. 19, 2016), D.E. 11. 

48. Ex Parte Motion, id. (Dec. 19, 2016), D.E. 8. 

49. Abdurrahman Transcript, supra note 43. 

50. Id. at 3. 

51. D. Minn. Abdurrahman Opinion, supra note 43. 
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toral College ballots had already been submitted by the time of Judge Magnuson’s decision, the elector’s complaint was moot.52 The elector’s claims 

were not among those capable of repetition but evading review, Judge Magnuson decided, because the would-be faithless elector was unlikely to be selected as an elector again.53 In addition, the complaint was barred by laches, 

because the elector brought the action forty days after he knew he would become an elector.54

On September 12, 2018, the court of appeals affirmed dismissal of the 

case.55 Noting that “an action does not evade review if the short duration results from the party’s failure to file suit sooner,” the court concluded that the 

elector “did not proceed expeditiously with his claim.”56

Tenth Circuit 

The two electors in the Colorado case dismissed their 2016 complaint, and 

on August 10, 2017, they filed a new complaint against Colorado’s department of state seeking nominal damages for intimidating the plaintiffs into 

voting against their preferences and seeking a judgment that Colorado’s infringement of their voting according to personal choice in the Electoral College was unconstitutional.57 A September 20 amended complaint added a 

third plaintiff, who was removed as an elector for voting for Kasich instead of 

Clinton.58 On April 10, 2018, Judge Daniel dismissed a second amended 

complaint for lack of standing.59

The court of appeals determined on August 20, 2019, that the replaced 

elector did have standing.60 The court further concluded that 

while the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, 

to remove an elector, to direct the other electors to disregard the removed 

elector’s vote, or to appoint a new elector to cast a replacement vote. In the 

absence of such a delegation, the states lack such power.61

52. Id. at 3. 

53. Id. at 4. 

54. Id. at 4–6. 

55. Abdurrahman v. Dayton, 903 F.3d 813 (8th Cir. 2018). 

56. Id. at 818 (identifying January 6, 2017, as the day that the claim became moot). 

57. Complaint, Baca v. Colo. Dep’t of State, No. 1:17-cv-1937 (D. Colo. Aug. 10, 2017), 

D.E. 1; Baca v. Colo. Dep’t of State, 935 F.3d 887, 901, 904 (10th Cir. 2019); see Brian Eason, 

“Faithless Electors” in Colorado Seek Damages in Lawsuit, Denver Post, Aug. 16, 2017, at 6A. 

58. Amended Complaint, Baca, No. 1:17-cv-1937 (D. Colo. Sept. 20, 2017), D.E. 13; see 

Baca, 935 F.3d at 904; see also Jesse Paul, Third Presidential Elector Joins Suit Against Colorado Secretary of State, Denver Post, Sept. 22, 2017, at 8A. 

59. Opinion, Baca, No. 1:17-cv-1937 (D. Colo. Apr. 10, 2018), D.E. 53; Baca, 935 F.3d at 

901, 904; see Second Amended Complaint, Baca, No. 1:17-cv-1937 (D. Colo. Oct. 25, 2017), 

D.E. 39; see also Jesse Paul, Federal Judge Tosses Out “Faithless” Lawsuit, Denver Post, Apr. 

11, 2018, at 2A. 

60. Baca, 935 F.3d at 901, 905–22. 

61. Id. at 943; see Trip Gabriel, Electoral College Members Can Defy Voters’ Wishes, Federal Court Rules, N.Y. Times, Aug. 23, 2019, at A14; Justin Wingerter, Court: State Electors 

Were Wrongly Forced to Vote for Hillary Clinton, Denver Post, Aug. 22, 2019, at 2A. 
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Moreover, the “uninterrupted history of Congress counting every anomalous 

vote cast by an elector weighs against a conclusion that historical practices 

allow states to enforce elector pledges by removing faithless electors from 

office and nullifying their votes.”62

By a two-to-one vote, the court remanded the removed elector’s claims to 

the district court for further proceedings.63 A third judge determined that the 

case was moot.64

Supreme Court 

The Supreme Court originally consolidated its two cases on faithless electors: 

the Tenth Circuit case originating in Colorado and the state-court case in 

Washington, but Justice Sotomayor recused herself from the Colorado case 

when she realized that one of the plaintiffs was a friend, so the cases were deconsolidated.65 On July 6, 2020, the Colorado case was resolved without 

opinion, reversing the court of appeals’ decision “for the reasons stated in” 

the Washington case.66

2020 

There were no faithless electors in 2020.67

62. Baca, 935 F.3d at 950; see Chiafalo v. Washington, 591 U.S. ___, ___, 140 S. Ct. 2316, 

2323 (2020). 

63. Baca, 935 F.3d at 902, 956. 

64. 935 F.3d at 956–59 (Judge Mary Beck Briscoe, dissenting). 

65. Docket Sheet, Colo. Dep’t of State v. Baca, No. 19-518 (U.S. Oct. 21, 2019); Docket 

Sheet, Chiafalo v. Washington, No. 19-465 (U.S. Oct. 9, 2019); see Robert Barnes, Sotomayor 

Recuses from 1 of 2 High Court Electoral College Cases, Wash. Post, Mar. 11, 2020, at A2. 

66. Colo. Dep’t of State v. Baca, 591 U.S. ___, 140 S. Ct. 2316 (2020); see Order, Baca v. 

Colo. Dep’t of State, No. 18-1173 (10th Cir. Oct. 1, 2020) (remanding the case to the district 

court); Docket Sheet, No. 1:17-cv-1937 (D. Colo. Aug. 10, 2017) (order dismissing the case, 

D.E. 73). 

67. See Nick Corasaniti & Jim Rutenberg, Electors Affirm Biden’s Victory; Vote Is Smooth, 

N.Y. Times, Dec. 15, 2020, at A1; John McCormick & Alexa Corse, Biden’s Win Affirmed by 

Electoral College, Wall St. J., Dec. 15, 2020, at A1; Elise Viebeck, Dan Simmons, Amy 

Worden & Omar Sofradzija, Vote Proceeds Without Surprises or Disruption, Despite Efforts 

of President and His Supporters, Wash. Post, Dec. 15, 2020, at A1.