The Supreme Court announced Tuesday that Justice Sonia Sotomayor will no longer participate in one of two hot-button cases this term concerning so-called faithless presidential electors, or those who vote for someone other than the state’s popular vote winner.
The news comes after Scott Harris, the Clerk of the Court, informed lawyers involved in the case that Sotomayor “believes that her impartiality might reasonably be questioned” due to her friendship with one of the litigants in the case.
“The initial conflict check conducted in Justice Sotomayor’s Chambers did not identify this potential conflict,” Harris wrote.
There are two cases, one from Colorado and one from Washington state, before the justices. Polly Baca, Sotomayor’s friend, is linked to the Colorado case. While the Court had initially consolidated the cases, on Tuesday it said it would unlink them and hear separate oral arguments.
The Court indicated that while Sotomayor would no longer participate in the Colorado case, she would participate in the Washington state case.
If the Court splits 4-4, it is left simply to uphold the lower court opinion, but such an opinion sets no new precedent. After Tuesday’s announcement, if the Court were to evenly split in the Colorado case, for example, it would most likely still be able to muster a majority in the Washington state case.
According to a story in the Denver Post from 2009, former Colorado state Sen. Polly Baca is a “longtime friend” of Sotomayor who called her when she was elevated to the high court. “Polly, you know how much I love you, and how much I love your senators, who both voted for me,” Sotomayor was quoted as saying in the story.
The Denver Post noted that Baca was scheduled to attend a White House reception celebrating Sotomayor’s confirmation.
In both cases, the justices will explore whether a state can bind a presidential elector to vote for the state’s popular vote winner. The justices agreed to take up the issue last January, thrusting themselves into yet another high-level and passionate fight in the heat of the 2020 election.
Baca, along with Micheal Baca and Robert Nemanich, were nominated in 2016 as three of the nine Democratic electors in Colorado, which Hillary Clinton carried in 2016. Nemanich asked a state official what would happen if an elector didn’t vote in favor of Clinton and was told such an elector would be subject to a Colorado law that requires electors to vote for the ticket that received the most votes.
Ultimately, Micheal Baca crossed out Clinton’s name on the pre-printed ballot and voted for then-Ohio Gov. John Kasich for president. In court papers, a lawyer for Polly Baca and Nemanich said they felt “intimidated and pressured to vote against their determined judgment” and ultimately cast their electoral votes for Clinton. The three electors filed suit challeging the state law.
The cases will be argued April 28.
