Colorado AG won’t prosecute the Hamilton Elector who voted for Kasich not Clinton

Colorado’s GOP secretary of state is ‘disappointed by the decision.’ Elector’s lawyer says a trial would have been embarrassing.

Colorado AG won’t prosecute the Hamilton Elector who voted for Kasich not Clinton

Colorado Republican Attorney General Cynthia Coffman will not prosecute Micheal Baca, a former member of the Electoral College who was stripped of his position when he cast a vote for Ohio Gov. John Kasich instead of Hillary Clinton during a chaotic day in December.

Coffman, who has said she is exploring whether there is a path for her to run for governor, says she doesn’t want Baca to use Colorado’s court system as a platform to make more headlines. Colorado GOP Secretary of State Wayne Williams, who asked Coffman to investigate Baca, said he is “disappointed” the AG won’t pursue the case.

On Dec. 19, Baca became the first elector in Colorado history not to cast a ballot during a ceremony at the Capitol for the presidential candidate who won the state’s popular vote. Baca was part of a movement known as the Hamilton Electors who believe they have the authority under the U.S. Constitution to vote their conscience as national electors. They hatched a plan to try and thwart Donald Trump from the White House by trying to convince enough electors around the country to vote for a more palatable Republican.  

The Hamilton Elector plan did not pan out, and Colorado has a law on its books saying electors must vote for whoever wins the state’s popular vote for president. In 2016, that was Clinton.

When Baca voted for Kasich, Colorado’s Williams removed him as an elector. The Republican Secretary of State then asked Coffman to investigate Baca, whom he calls a “faithless elector.” The AG’s office did launch an inquiry. A state investigator tried to question some of Colorado’s nine other other national electors in mid-April. At the time two of them told The Colorado Independent they would not cooperate in the investigation. 

“We had an individual who took a specific oath and then immediately violated the oath,” Williams said in an April interview. “And so I think we want the AG to investigate both the refusal to do our statutory duty and also the violation of the oath.”

But that investigation is over. Coffman said she was using her discretion as AG not to prosecute Baca.

Here’s what she said in a statement sent to reporters at around 4 p.m. on the day when a major eclipse was consuming reader and viewer attention:

My office has thoroughly investigated the circumstances surrounding this case. While the faithless elector intentionally sought to disrupt the election process and override the will of Colorado’s voters, he ultimately was unsuccessful. Thanks to the preparation and swift action of Colorado Secretary of State Wayne Williams, and attorneys from my office, Colorado’s voters were protected and their votes counted.

The decision not to prosecute wasn’t reached lightly, and I in no way condone the elector’s reckless conduct. However, I am exercising my prosecutorial discretion so the individual cannot use our court system as a taxpayer-funded platform to capture more headlines and further flout the law.

I have offered to work with Secretary Williams to evaluate options for strengthening Colorado’s election laws and procedures. Some of the potential solutions may include providing for the automatic disqualification of an elector and the immediate substitution of an alternate elector by operation of law, and voting for alternate electors at the same time as electors. I thank the Secretary for his leadership, passion and commitment to protecting our election process.

In his own statement, Williams took issue with the decision:

I am disappointed by the decision not to prosecute the faithless elector who flagrantly violated his oath immediately after taking it.

While it is true that we worked successfully with the political parties and the courts to stop his attempt to steal the votes of 2.9 million Coloradans, the decision not to prosecute leaves Coloradans without an assurance that future electors won’t hijack the will of millions of Colorado voters.

 I look forward to working with the attorney general to ensure enforcement in the future

Baca, who now lives in Las Vegas and is working as a flight attendant while dealing with some recent health issues, applauded Coffman’s move.

“I believed in December when the Electoral College voted — and still believe today — that my actions are fully protected by the U.S. Constitution,” he  told The Independent in a phone interview.

He also offered a cryptic remark.

“I have yet to speak to [my attorney] about the potential for civil litigation,” he said, but declined to go into detail about what that means.

Coffman’s decision not to prosecute Baca comes a week after two of Colorado’s other former electors, Bob Nemanich of Colorado Springs and Polly Baca (no relation to Micheal) of Denver filed a federal lawsuit against Williams for intimidating them into voting for Clinton.

“Because of Defendant Williams’ threats … and his actions and against Elector Michael Baca, Plainitiffs felt intimidated and pressured to vote against their determined judgment,” reads a portion of the elector lawsuit.

Baca’s attorney, Mark Grueskin, says Coffman ultimately made the right call by not prosecuting his client. He is confident Baca would have been acquitted, he says, adding that a trial would have led to a “good deal of embarrassment” for Williams.

“The secretary of state would have ended up with egg on his face because the trial would have been about violating my client’s constitutional rights,” Grueskin said.

Responding, Williams says federal and state courts have agreed with him that there isn’t a constitutional protection for faithless electors.

“They must follow the law,” Williams said.

Photo courtesy Department of Law

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About the Author

Corey Hutchins

is a journalist in Colorado, and Columbia Journalism Review's Rocky Mountain correspondent for the United States Project. Follow him on Twitter @CoreyHutchins and email him at CoreyHutchins [at] gmail [dot] com.

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