Colorado Sec. of State makes a deal with electoral college members suing him: ‘We just want an answer to the constitutional question’

Both sides hope the U.S. Supreme Court takes their case before the 2020 presidential election

Colorado Sec. of State makes a deal with electoral college members suing him: ‘We just want an answer to the constitutional question’

Colorado’s GOP Secretary of State Wayne Williams and attorneys for three members of the 2016 Electoral College class who are suing him for voter intimidation have reached a deal.

They haven’t settled but instead agreed to make concessions on both sides that could grease the wheels to have their case heard by the U.S. Supreme Court more quickly.

Under their agreement, the electors will not sue Williams personally and won’t ask for damages and attorney fees beyond a dollar. In exchange, the Secretary of State’s Office will waive any immunity, meaning the case won’t get bogged down in protracted litigation — and could move through the courts more quickly.

“Ultimately, we just want an answer to the constitutional question at issue before the 2020 presidential election and this is the least expensive and most efficient path,” Williams said in a statement.

The case involves a federal lawsuit filed in August in Denver District Court that claims Williams intimidated former national electors Bob Nemanich, Polly Baca and Micheal Baca (no relation to Polly) when Williams enforced a state law requiring them to cast their Electoral College votes for Hillary Clinton because she won Colorado’s popular vote in the 2016 presidential election.

The suit initially named Williams personally. It also says Williams violated Micheal Baca’s “federally protected rights” when he stripped him of his position as an elector after Baca tried to cast his vote for Ohio Gov. John Kasich instead of Clinton during a much-publicized ceremony on Dec. 19. The three electors were part of an ultimately unsuccessful movement called the Hamilton Electors that tried to deny Donald Trump the presidency through the Electoral College. They believed they had the constitutional ability to vote for whomever they wanted. Williams says he was following state law, and also followed instructions from a state judge throughout the process.

Related: Electoral College members file voter ‘intimidation’ lawsuit against Colorado’s secretary of state

The goal is for the nation’s highest court to answer this fundamental question about the Electoral College: Do its 538 members have the constitutional right to vote for whomever they want, regardless of what individual state laws, like Colorado’s, say?

Colorado’s three electors are represented by Harvard law professor Lawrence Lessig and Denver attorney Jason Wesoky.

The legal hope is to get the case before the U.S. Supreme Court before the next presidential election in 2020, so that the 538 Electoral College members have more clarity about their individual roles as electors.

A path to the High Court is not guaranteed and would require a kind of Rube Goldberg machine of successful events.

One way for the U.S. Supreme Court to hear the case would be if a federal judge in Denver rules for or against the electors in their lawsuit against Williams or dismisses the case. The losing side would appeal, and the case would bump up to the federal 10th Circuit Court of Appeals. In that scenario, lawyers for Colorado would argue that the state law is valid and properly restrains electors from voting for whomever they want. Lessig would argue that, historically, the Electoral College was set up to allow electors to vote their consciences. Secretary Williams says that if Colorado’s electors had gone rogue and were allowed to do so, they would have stolen the votes of 2.9 million Coloradans who cast ballots for Clinton in November.

A similar case is pending in Washington State. So if that case ends up before the Washington State Supreme Court and that court rules differently than the 10th Circuit, a split decision on a matter of national significance opens a path for the Supreme Court to make the ultimate decision.

If that happens— or even if both courts rule in similar ways— lawyers for the electors believe the Supreme Court would want to weigh in.

“We think it’s a constitutional question that’s never been answered before,” says Wesoky. “We think that the court would want to resolve this question.”

Lessig in a statement said the two sides have “very different views” of the law.

Indeed they do.

“This case is not about electors voting their conscience,” Williams said in a statement. “These electors were attempting to trade their votes with electors in other states which would disenfranchise every Colorado voter.”

Regardless, Lessig says he is happy both sides recognize the importance of getting their questions resolved more quickly.

“Across the country, a record number of electors cast ballots against their pledge,” he said in a statement. “It is important that their right to do that be resolved before it triggers a constitutional crisis.”

If the Supreme Court ruled electors do have the right to vote their conscience regardless of pledges or state laws, the influence of national electors would be tremendous. Campaigns to become one could rival that of a Congressman or even a president.

“If electors are free agents then voters would want to screen who those [electors] are in a very different way,” says Williams.

A Supreme Court case would also put heightened attention on the Electoral College system— a system some believe should eb scrapped altogether.

That’s also one reason the potential for the nation’s highest court deciding the role of national electors intrigues George C. Edwards III, a professor of political science at Texas A&M University and author of the book “Why The Electoral College is Bad for America.”

“I’d like to see it cleared up for the following reason,” he told The Colorado Independent. “I think it would help put another nail in the coffin of the Electoral College. It’s a terrible system to begin with and it’s even worse if you have faithless electors.”

Photo by Brittany Hogan for Creative Commons on Flickr.

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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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