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Sotomayor to sit out Colorado 'faithless electors' Supreme Court case

The justice took herself off the case involving a challenge to a state law on how presidential electors must cast votes because of a personal friendship with one of the challengers.
Portrait of Supreme Court Justice Sotomayor
Supreme Court Justice Sonia Sotomayor in her office chambers at the Supreme Court in Washington.Brooks Kraft / Corbis via Getty Images file

WASHINGTON — Supreme Court Justice Sonia Sotomayor will not participate next month when the court hears one of two cases that could change a key element of the system America uses to elect its president — the Electoral College.

The court disclosed Tuesday that Sotomayor took herself off a case from Colorado involving a challenge to a state law directing how presidential electors must cast their votes because of a personal friendship with one of the challengers. That friend, Polly Baca, was one of three electors who argue that they ought to be able to vote for the candidate of their choice instead of the person who won the popular vote in the state — what's known as a "faithless elector."

In a letter to the lawyers in the case, the Supreme Court's clerk, Scott Harris, said Sotomayor concluded that "her impartiality might reasonably be questioned due to her friendship with respondent Polly Baca." The letter said Sotomayor and her clerks failed to catch the potential conflict when the case was first brought to the court.

Baca, a former state senator, has been Sotomayor's friend for decades. Baca's sister and brother-in-law lived for a time in Sotomayor's New York apartment, and Baca herself had a prominent spot at the justice's Senate confirmation hearing.

However, Sotomayor will participate when the court hears a similar challenge from Washington state involving the same issue. The two cases will be argued April 28 and were originally to be considered in a single one-hour argument. On Tuesday, the court separated the cases and set an hour of argument for each case.

Sotomayor's recusal is unlikely to make any practical difference. Even if the justices turned out to be divided 5-4 in the Colorado case, her absence would result in a 4-4 tie, meaning the outcome would have no legal significance; her participation in the other case would count, however, and it would be the controlling decision.

More than half the states have laws requiring electors to obey the results of the popular state vote and cast their ballots accordingly. When an elector refuses to follow the results of a state's popular vote, the state usually simply throws the ballot away.

The cases before the Supreme Court involve faithless electors during the 2016 presidential election. The 10th U.S. Circuit Court of Appeals invalidated Colorado's law requiring conformance with the popular vote. But faced with a similar challenge, Washington's Supreme Court upheld that state's similar law.

The nation's highest court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the popular vote. But the justices have never said whether it is constitutional to enforce those pledges.

The court will issue its decision by late June.