Two of Colorado’s nine national electors are taking Colorado to federal court today, challenging a law that requires them to cast their Electoral College votes for Hillary Clinton since she won the state.
The electors, both Democrats, are former state Sen. Polly Baca and Colorado Springs math teacher Bob Nemanich.
In the lawsuit, the first of its kind, according to Electoral College experts, the electors argue the U.S. Constitution allows them to vote their conscience instead of being bound by a decades-old state statute to vote for the candidate who won the state— Clinton, in this case. All 538 national electors will cast their official votes for president in their respective state capitols on Dec. 19.
The legal filings also come with a motion for a temporary restraining order aimed at stopping Colorado officials from enforcing the law. If granted, the order would prevent the state from removing and replacing any elector who doesn’t vote for Clinton. It is likely the court will have a hearing on the order before Dec. 19 when the electors are scheduled to cast their votes.
Democratic Gov. John Hickenlooper, Republican Attorney General Cynthia Coffman, and Secretary of State Wayne Williams are the defendants in the lawsuit.
In response to being served, Williams, a Republican, used unusually harsh language, calling the lawsuit and the overall strategy “arrogant,” “odious” and “evil.” He said the court should reject what he called an “illegal conspiracy,” and opined that the electors had succumbed to “intrigue and corruption.”
Here’s a page from the lawsuit, which Denver lawyer Jason Wesoky says he filed today in U.S. District Court:
Here's a page from the federal lawsuit served to Colorado so Electoral College members can vote their conscience pic.twitter.com/x6Xfmh656g
— Corey Hutchins (@CoreyHutchins) December 6, 2016
Though they are Democrats, four of the nine Colorado electors have agreed to break with the state’s voters if they can persuade enough other electors to rally behind an alternative to Trump. They hope to deny him the White House, arguing that he is unfit for the presidency and that the Electoral College system was designed precisely as a check against such a situation.
Electors are chosen based on who won the state, so all of Colorado’s electors are Democrats who were selected by their peers in the spring during party caucuses and assemblies. Because there are more Republican electors across the country than there are Democrats, an alternative to Trump likely would have to be a moderate Republican. Electors have named Mitt Romney, John McCain, Condoleezza Rice, John Kasich, Michael Bloomberg and Colin Powell as possibilities.
For their plan to succeed, the rebellious electors must deny Trump the 270 electoral votes he needs. Based on the states he won, he is currently projected to take 306 Electoral College votes to Clinton’s 232.
The plan is a long shot, the electors acknowledge, but technically possible. So far only one Republican elector in Texas is on record saying he will take part in the plan. And Democrats in other states Clinton won haven’t exactly jumped to get on board. It’s unclear how many of the 538 electors even know of the plan. Republican electors in Wyoming, South Carolina and Utah, however, have told The Colorado Independent they have gotten many emails about it.
“I’m cautiously optimistic,” said Nemanich on Saturday when he told a small group of progressive activists about his plans during a meeting at a library in downtown Colorado Springs.
Nemanich told the group he and others are approaching Republican electors to see if any might be on board. If enough Democratic and Republican electors revolt and vote for an agreed-upon alternative that denies Trump the 270 votes he needs, the U.S. House of Representatives would determine the presidency, choosing from Trump, Clinton and the third option. Or, if enough members vote for someone else they could choose the president straight from the Electoral College.
“We’re first freeing the electors to be able to vote their conscience,” Nemanich said about the aim of today’s lawsuit.
The four electors in Colorado have joined with three others in Washington state. They call themselves Hamilton Electors, a nod to Founding Father Alexander Hamilton who wrote in Federalist Papers No. 68, “The process of election affords a moral certainty, that 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.”
The framers set up the Electoral College as a fail-safe against direct democracy, which they did not trust. Clinton won the popular vote by more than 2.5 million votes.
The Hamilton Electors say they should be able to vote their conscience and act as a deliberative body to choose the president if the system gets it wrong.
Twenty eight other states have laws on the books binding Electoral College members to the presidential candidate who won the state.
But the U.S Supreme Court has left open the question of whether it is constitutional to enforce those state laws, says Wesoky, the Denver lawyer for the legal group Hamilton Defenders, which he helped create to counsel the Hamilton Electors.
“We believe it is not, under Article II and the 12th Amendment and how it is discussed by Hamilton in the federalist papers,” Wesoky told The Colorado Independent.
Secretary of State Williams said his office will “vigorously defend the will of the people of Colorado over two faithless individuals who refuse to uphold their pledge to give voice to Colorado’s electorate at the national level.”
Here’s the lawsuit: nemanich-v-hickenlooper-complaint
Here’s the temporary restraining order: motion-for-tro-preliminary-injunction-12-6-16
Photo by Beth Cortez-Neavel for Creative Commons on Flickr.