Why do you suspect that will be true? If you are really holding out hope that more than one or two faithless electors will happen, I believe you are being overly hopeful/fearful (depending on how you view it).
Because this may be the first time a faithless elector is actually replaced by the state thus the issue may go to court or Congress could decide to disallow the slate of electors since replacing the faithless elector means the slate was not “regularly given”.
Which doesn’t mean anything if it is unconstitutional to force an Elector to vote a certain way.
If that is the case then the law is horribly written. Whose job is it to remove an elector for violating section 5? The SoS? The fellow electors (remember they pick the replacement)? At the very least you are arguing that “failure to act” is ambiguous enough to include voting in violation of section 5 but isn’t a law invalid if it is that ambiguous?
As for the second part, there are other states that have a slap on the wrist i.e. a civil fine but still allow the “illegal” vote to count. And there are laws on the books where an act is illegal but there is no enforcement (e.g. the flag codes)
Why is it horrendous and a terrible precedent to set? Treating the electoral college as a democratic body with actual rights and privileges is far more dangerous, IMO. Those rights have long since expired, and any attempt to exercise them needs to be crushed. The actual arguments used to overrule them if they step outside the lines is not terribly important so long as the decision is correct.
Establish that it’s unconstitutional. I’ve yet to see you or anyone else making that argument, backed by specific text in the constitution. As I asked, how is it a “terrible precedent?” Make the case. Be specific.
No, a law isn’t invalid just for being ambiguous. What gave you that idea? Ambiguity is the special delight of lawyers. 
But more to the point, yes, the Secretary of State would appear to have that function, or at least an argument can be (and has been) made to that effect, since the SoS oversees the process in Colorado. And it’s not “failure to act”, it’s “refusal to act”, which is a significant difference.
Yes, some states have putative post-vote punishments. But Colorado does not. Why? Because they have a better mechanism: invalidating the effort to vote contrary to the law.
“Each candidate running for President in your state has his or her own group of electors.” – “What is the Electoral College?” – US Archives – n/d
Each State may differ in this aspect, but generally speaking, these Electoral Voters are picked by the candidate … so in effect, these 9 folks in “Colorado” were hand-picked by Hillary as being her best friends and political allies … there’s another 9 folks who were hand-picked by The Donald, who will not be meeting in “Denver” to cast their Electoral Votes …
See where I’m going with this?
There are 306 hardcore rabid “party-first” complete loyalists, dedicated heart-and-soul whose only goal in life is to put The Donald into the White House … just seems a stretch to think 37 will vote for someone else …
As we combinatorists frequently have cause to say, “order matters.”
And an order of events is clearly given by the statute:
Only after the vacancies have been identified and filled does the voting begin. I don’t see anything there that empowers anyone to relitigate the vacancy issue once the electors have moved on to the business of voting.
So yeah, there’s no enforcement mechanism for §5. Sometimes the law is badly written.
My take on the underlying Constitutional issue, which as I see it, is what should control here, is this: the Founders clearly intended that the Electors be a deliberative body. (The Federalist #68 and all that.) The states have total freedom to choose the Electors any which way. (This fact still astounds me when I think about it, but there it is.) But once they’ve chosen them, they can’t re-choose them based on the outcome of the Electors’ deliberations, because that would act as a veto over their performing their duty under the Constitution. And nobody gets to veto a part of the Constitution.
Here’s the thing though; in states where the rule of law is paramount, you HAVE to follow the law to the letter. Which means that the Electoral College does still retain some ability to be its own democratic body with its own rights and privileges.
As long as it still exists, it pretty much HAS to conform to the traditional democratic principles of each person casting an irrevocable vote, etc…
I don’t have any issue with faithless electors being punished for said faithlessness, and I wouldn’t have a problem with states pre-emptively replacing electors who advertise their intent to be faithless (see Suprim in Texas), but I do have serious problems with tampering with the vote once it’s been made, up to and including replacing faithless electors and re-voting and other banana republic bullshit.
I have heard this as well.
The Constitution empowers the states to select Electors. There is nothing in the Constitution giving the state the power to tell the voter how to vote.
I would also argue that according to the laws of the state, we have selected our electors. 3 USC 1 Sect. 4 gives states the power to fill vacancies but no power to remove an Elector.
But let’s look at Section 5
So any change to the appointment of Electors (like removal and replacement) needed to be done by Dec 13th
But is so ambiguous as to be meaningless. “Refusal to act” means failure to do what exactly? Vote? Follow Section 5? Vote the way the Governor commands them to vote? Vote in accordance with the US Constitution (3 USC 1 Sect 8) by voting for two Coloradans?
Oh hey that last one forms an interesting hypothetical. Suppose a party nominates two people from the same state (The Pubs almost did this with Bush & Cheney) and they are both Colorado citizens. Would you argue that Section 5 of the state law would require the Electors to make an illegal vote?
That’s the issue however. There IS no mechanism for invalidating the effort. There is nothing that says a vote in violation of Section 5 is invalid. There is no mechanism for removing the elector. If there were, wouldn’t the law specifically name who removes the elector, the SoS, the fellow Electors, someone else? If there were there would be something like
A Judge told the Electors they did not have to take the oath of office as amended by the SOS.
Highlights from the article
ETA: I hope these two vote for someone else and force the issue.
And we may be set for a Constitutional Crisis
The 10th Circuit hinted in their earlier ruling that such a replacement may be unconstitutional. Questions are:
- How will SCOTUS rule (eventually)
- Will Congress disallow the vote as “not regularly given”.
A “Constitutional Crisis”? You are joking, right?
First, let me make clear that my personal opinion about the relevant law is not what I’ve been discussing. Your expressed opinions are probably pretty close to mine. However, the point I’ve been trying to make is that this isn’t an “open-and-shut” situation, where no one could possibly have a decent legal argument in favor of removing the elector. I’ve made a decent legal argument. Indeed, the one I made (which I came up with without reading what the Colorado Secretary of State was saying about the issue) is, indeed, essentially the one being adopted.
Let us put one thing to rest right now: The 10th Circuit did not really hint anything about the constitutionality of the concept of replacing an elector as the Secretary of State threatened to do. Here is the sentence in the opinion denying the requested injunction: “While we question whether that subsection provides him any such authority after voting has commenced, that precise question is not before us.” In other words, it’s not been briefed, argued, properly raised and considered, etc. by the court. The judges denying the injunction aren’t certain the SoS has the authority; they would need to be briefed before they could truly answer the question.
And, of course, the likelihood that the courts will get involved is actually low. This is probably a case where they will defer to Congress on the issue. Congress, of course, will not do anything other than accept the return from the state of Colorado, should a claim actually be raised from the requisite number of members (one each from House and Senate, if my memory serves me right).
But hang onto your hope for drama, if you like. The underlying issue of legislative construction is certainly potentially interesting.
As for your “constitutional” argument, I’m not comprehending it. What particular part of the United States Constitution do you argue is being violated by the removal of the “faithless” elector? The fact that the Constitution doesn’t specify the right to do so doesn’t make doing so unconstitutional; you do understand that, right?
Indeed, if you read the 10th Circuit opinion you are referencing, you’ll find that the 10th Circuit pretty clearly dismissed all the other “constitutional” arguments the two petitioner-electors raised. Swatted them down fairly quickly by noting that the Constitution gives Colorado the right to choose how electors are selected, and that that authority has previously been ruled to be plenary. You still need a constitutional reason it can’t be done.
In passing, I’ll point out that your reference to 3 U.S.C. §5 is incorrect. The “safe harbor” provision simply means that, had they removed the elector prior to Dec. 13, Congress cannot challenge that. The subsequent removal does at least allow Congress to challenge the validity of the vote tally reported. But that doesn’t mean it cannot be done. Your efforts at statutory construction are weak, here.
Apparently they did in the footnote.
The Constitutional question is: Is the Electoral College an independent deliberative body or not?
There is also another question at work. My state selected a slate of electors in accordance to the law. Does the state have a right to remove a properly elected Elector because they don’t vote in the way the State wants?
The right to select a group does not give the right to tell them how to vote.
For me the bottom line is this. There is absolutely no justification in the Constitution allowing a State to control how an Elector votes. You contend that there is nothing preventing it. So which should win out? IMO the voters selected a group of voters and I have trouble with a State being able to tell ANY group of voters “Vote this way or you’ll be punished.” Time will tell based on what the courts do and Congress on 6 Jan if this controversy will lead to a clarification (or change) of the Electoral College’s function.
You really should read the opinion if you’re going to cite it. 
The footnote in question said, “And we deem such an attempt by the State unlikely in light of the text of the Twelfth Amendment.” This is an odd statement, since the Twelfth Amendment doesn’t seem to have any language pertinent to that issue in it at all.
The best I can guess is that the question is whether being able to see the ballot and intervene means that they have “voted by ballot” (there may be some decisional law on this sort of thing the back recesses of my brain is telling me). But there’s nothing in the 12th that specifically prohibits the practice.
I’ve been pushing you to make a constitutional argument because it’s a common problem with liberals in this country (less often with conservatives, since they usually just point to the words and say, “what that says”) to assert that the Constitution bars all sorts of bad behavior. Granting, for the sake of argument, that removing an elector who is faithless is a “bad” idea (subversive to democratic ideals), that doesn’t make it unconstitutional. You have to actually articulate constitutional law to support your idea. Unconstitutionality isn’t something that happens because something offends my sensibilities, or the sensibilities of Saint Cad.
You assert that the Constitutional question is: “Is the Electoral College an independent deliberative body or not?” In what way is this a constitutional question? That is, suppose, as happened, the SoS of Colorado, interpreting his state statute (§1 of the relevant statute as it happens) to give him the authority, removes an elector who attempts to cast a ballot that is contrary to the requirements of state law. How specifically does this violate the Constitution? Is there some specific language in the Constitution that it violates? How does it violate that language? What prior decisional law, if any, are you relying upon to support your assertion? Is there decisional law you’re going to have to distinguish, because it appears to counter your argument? Just saying, “Your Honor, what Colorado did subverts the purpose of the Electoral College” isn’t going to get you anywhere (not the least for the reason that the “Electoral College” is not even mentioned in the document).
The entirety of the Constitution’s reference to this body is found in Article II, as amended by the provisions of Amendment XII. I’ve referenced the relevant language of the amendment; nothing there says that they have to be able to “deliberate.” As for Article II:
There you have it.
One final important piece of information is relevant: The Supreme Court in McPherson v. Blacker, 146 US 1 (1892) established that the power of the state with regard to choosing electors is plenary, that is, it is not limited in scope. That case, by the way, is the reason Nebraska and Maine are allowed to use districts to determine electors; in McPherson, Michigan was doing exactly that, which is what was objected to. But if the method of choosing an elector is plenary, then certainly it can be considered to include the power to ensure that the elector, in the process of attempting to vote, casts a valid ballot under state law.
Now, once again, I caution that my arguments are not meant to be dispositive. I’m not addressing the relative merits of them. But so far, your argument devolves to: “I don’t think this lets the Electoral College do what they framers intended, thus it’s unconstitutional.” My only intent up to this point is to establish that, as a constitutional argument goes, that’s a non-starter.
Now, as I hinted above, you might get somewhere if you looked into decisional law on the meaning of casting a ballot. You might also want to make some assertions with regard to rules of construction.
My personal opinion, previously expressed, is that this is tempest in teapot time, and nothing fruitful will come of it. Sadly, many interesting legal questions die the death of irrelevancy.
Reading the denial of the appeal here, it seems like Baca had some good legal arguments but did not use them. Bad lawyering?
If a state can remove a duly elected elector (yes) for not voting “properly” why could it not do the same for a member of Congress? Say, have a law that state that if a Congressman ever votes contrary to his campaign promises his seat is vacant. Nobody would seriously believe such a law would be constitutional.
The Supreme Court (Term Limits v. Thornton?) held that the states may not impose any greater requirements on members of Congress than those specified in the Constitution.
I know that Congress and the Electoral College are not perfectly analogous, and states would likely be able to impose additional requirements on electors.
However, it is unseemly and an affront to commonly understood ideals of representative democracy, that any elected member of anything could be removed ex post for failing to act how the government directs him to act. Such a thing is not representation, but a farcical rubber stamp.
Now, it could be argued that a rubber stamp is exactly what we want, and that tradition and custom have stripped the electors of whatever powers the framers intended them to have and that the voter of the state should have their will enacted. Such a change, I believe, would require a constitutional amendment.
Read the opinion I linked to. The Court said that they probably wouldn’t do that …
But Williams (the Sos) did anyways.