Lawyer group ‘Hamilton Defenders’ forms to counsel Electoral College members, sue states

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A group of attorneys from around the country has launched a legal fund to defend members of the Electoral College or challenge laws in certain states that require national electors to cast votes for the presidential candidate who won that state.

The group, Hamilton Defenders, is a nonprofit, according to filings with the Texas Secretary of State.

The name is a nod to Founding Father Alexander Hamilton who viewed the Electoral College as a  safeguard against anyone who didn’t have “the requisite qualifications” from becoming president. 

Twenty-nine states have laws on their books saying a national elector must cast his or her vote for the presidential contender who won their state. But the lawyers argue such laws are unconstitutional.

The Hamilton Defenders aim to file lawsuits on behalf of any national elector who wants to challenge their state’s law, and to represent electors if any actions are brought against them for voting their conscience, said Elizabeth Basden, a Texas attorney and the registered agent for Hamilton Defenders. 

On Dec. 19, all 538 national electors are scheduled to cast their votes in their respective state capitols. Because of recent national attention on Colorado’s nine electors, C-SPAN wants to televise the proceedings in Denver. 

Following the election of Donald Trump on Nov. 8, who is projected to win 306 Electoral College votes to Hillary Clinton’s 232, a handful of electors from Colorado and Washington have a launched a movement to see if they can convince enough the other 538 electors in the country to choose someone other than Trump for president. 

The Electoral College is the reason a president can win the White House without winning the nation’s popular vote. That happened in 2000 when Democrat Al Gore won more votes across the country, but Republican George W. Bush took the White House when the U.S. Supreme Court halted a recount in Florida, thus giving him more electoral votes.

The framers of the U.S. Constitution set up this system as a check against direct democracy, which they did not trust. Because of it, each state is allotted a number of electors based on how many members of Congress the state has. In most states, the winner of the popular vote, no matter how slim the margin, takes all of that state’s electoral votes. The nominee who reaches 270 or more Electoral College votes wins the presidency no matter who racked up more actual ballots cast.

This year, Hillary Clinton won more than 2.5 million more votes nationally than Trump, but Trump took more projected votes in the Electoral College. Polly Baca, a national elector from Colorado and a former Democratic state senator, says Trump is not the president-elect until the Electoral College actually votes.

Because there are more Republican electors nationally than Democrats, any Trump alternative— should the elector revolt plan come to fruition— would likely have to be a Republican. Electors are either Republicans or Democrats, depending on which candidate won the state, and there are as many electors in each state as there are members of Congress from that state.

Colorado, likely one of the first states that will face a potential lawsuit challenging its state law that binds electors to the state’s popular winner, has nine electors. Four of them say they would cast their votes for someone other than Clinton, even a Republican, if they can gather enough support around the country.

Related: Four out of 9 Colorado Electoral College members agree: Revolt is necessary

This group of electors, four from Colorado and two from Washington, have formed their own nonprofit fundraising organization to raise money for a public relations effort for their stop-Trump Electoral College plan.

Meanwhile, a loose-knit group of attorneys from around the country who have agreed to represent electors formed the Hamilton Defenders legal fund, a 501(c)4 nonprofit based out of Texas.

“The suits that I’m aware of are the ones that will be challenging the binding statutes in as many states as we can muster,” said a Colorado attorney working with the group who asked not to be named because the group is still in early planning stages. 

So far that includes a website and a GoFundMe page.

The group’s website includes a quote from Hamilton, who wrote in the Federalist Papers, “The office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

“We’ve got volunteer attorneys in, I think, now 20-plus states,” the Colorado lawyer for the Hamilton Defenders said.

As the Hamilton Electors try to reach out to their fellow national electors from around the country and convince them of their plan to thwart Trump, the Hamilton Defenders will do outreach to find any elector willing to stand in as a plaintiff in a state with elector-binding laws, as well as offer support to any elector who might need it. 

“We understand all of the risks involved in them coming forward. Some of them have been getting threats,” said another Hamilton Defender attorney from the Washington, DC area who asked not to be named because of the sensitivity of the issue. “The political fallout some of them face may be significant.”

The DC lawyer said she has spoken with “quite a few” electors around the country and said she understands they have legitimate concerns about getting involved in such a movement. Any elector who wants to get in touch with a Hamilton Defender attorney can do so confidentially on the group’s website, she said.

In Colorado, the Secretary of State’s office is not aware of any lawsuit at this time, a spokesperson said.

 

Photo by Daniel X. O’Neil for Creative Commons on Flickr.

6 COMMENTS

  1. That also means that proportional voting would be out. How about challenging the number of electors from each state under the Equal Representation clause?

  2. Here’s what this fools errand would require:

    270 Electoral College electors, currently won by either Mrs. Clinton or President-elect Trump, to vote for a Republican candidate who has yet to be named and who has yet to agree. And as pointed out by the Denver Post it would also require that “37 Republican electors vote against Trump”

    Also from the Post:

    Colorado doesn’t “allow for so-called “faithless electors.” If an elector does not cast a vote for the right candidate, they are removed and replaced with a new elector, according to the Colorado secretary of state’s office. So Baca is required under Colorado law to cast his vote for Clinton because she won the state’s nine electoral votes.”

    “This has only been tried a few times and really, it’s been a while,” Kyle Saunders, a political science professor at Colorado State University said. “It’s absolutely futile.””

    “No elector has even crossed party lines since 1972, when a Republican elector cast a ballot for the Libertarian ticket, according to the NCSL. More recently in 2004, a Minnesota elector nominated by the Democratic Party voted for John Edwards, the running mate of Democrat John Kerry.”

    The odds of this actually happening are roughly the same as Mr. Hutchins winning a Pulitzer Prize

    And by the way, it would all have to be done by December 19th.

    Tick, tick, tick.

  3. I would love to see this “play out”…the Founding Fathers were so much more intelligent, knowledgeable, and wise than most modern politicians and god damned lawyers.

  4. name me one responsible competent republican that should be nominated by the lemmings appointed to the electoral college. Let’s be responsible citizens and ditch the entire idea. Soon.

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