UPDATE: The state of Colorado responded Friday afternoon in legal filings that argue the electors must follow state law. “This Court should not countenance Plaintiffs’ attempt to dismantle the Electoral College from within,” the response reads. Find the whole thing here: 13-20161209-response-to-motion-for-preliminary-injunction
On Monday, two members of Colorado’s Electoral College will face a federal judge in Denver for their first hearing in a lawsuit against the state. They are suing for the ability to cast their votes on Dec. 19 for someone other than Hillary Clinton, who won Colorado.
The electors, former State Sen. Polly Baca of Denver and Colorado Springs math teacher Bob Nemanich, are both Democrats. But they hope they can persuade enough of the 538 Electoral College members to rally behind an alternative to Trump. Just one hitch: Colorado — along with more than half the states in the U.S. — has a law on its books saying electors must vote for whomever won the popular vote in the state on Election Day.
The lawsuit in Colorado is the first of its kind challenging the constitutionality of state laws that bind electors. The hearing is at 3 p.m. Monday in U.S. District Court in Denver. Judge Wiley Daniel, who was appointed by President Bill Clinton in 1995, will hear the case.
The lawsuit names Democratic Gov. John Hickenlooper, Republican Attorney General Cynthia Coffman and Republican Secretary of State Wayne Williams as defendants.
On Dec. 19, all of Colorado’s nine national electors are scheduled to attend a ceremony at the state Capitol in which they cast their official votes.
“It’s my understanding that the Secretary of State will ‘remove the elector’ who fails to ‘vote for the presidential/vice-presidential ticket that receives the most votes in the state’ and would ‘seat a replacement elector,’” Baca wrote in an affidavit filed with the court. “It’s my understanding that the Attorney General or the Secretary of State, at the direction of the Governor, would conduct this removal and replacement.”
Accompanied by a motion for a temporary restraining order, the lawsuit aims to block these state officials from stopping the electors from casting a vote for for whomever they want.
Twenty-eight other states have laws on the books binding Electoral College members to the presidential candidate who won their state’s popular vote.
But Jason Wesoky, a Denver attorney who filed the lawsuit on behalf of Colorado’s two electors, says the U.S Supreme Court has left open the question of whether it is constitutional to enforce those state laws.
“We believe it is not, under Article II and the 12th Amendment and how it is discussed by [Alexander] Hamilton in the Federalist Papers,” Wesoky says.
From the lawsuit:
The purpose of the Electoral College, which is made up of electors such as Plaintiffs, is to elect the President and Vice President of the United States. There is nothing in the Constitution that permits or requires electors to vote the same as the popular vote in their states. For the first 100 years of our history, the majority of states did not hold popular votes for the election of president and vice president and, instead, the states themselves appointed the electors who voted for president and vice president.
Responding to the suit, Secretary Williams lashed out at the electors in a statement, using uncharacteristically harsh language. He called the suit and its broader strategy “evil,” “odious,” “arrogant” and part of an “illegal conspiracy.”
Not all of the Colorado’s nine electors are on record in support of the lawsuit, either.
Pueblo County Democratic Chairwoman Marybeth Corsentino told her local newspaper on Dec. 8 that she doesn’t think much of the effort.
“My plan right now is to follow through and vote for Hillary Clinton,” she said. “But if there was truly a way to keep Donald Trump from being president . . . but I don’t know.”
Another elector, Boulder Sen. Rollie Heath, says he is taking a wait-and-see approach until his Dec. 19 deadline. He was recently pictured with Williams at an event for Gov. Hickenlooper.
— Colorado Secretary of State Wayne Williams (@COSecofState) December 8, 2016
In the post-election landscape, in which Clinton won the popular vote by more than 2.5 million and Trump won the Electoral College by a projected 306 to 232, the Colorado lawsuit fits into a larger legal context.
Since Nov. 8, lawyers around the country have been filing motions in courts that attack parts of the Electoral College system, reported Slate.com.
Last month, California lawyer John Birke sought a restraining order to block any of 538 national electors from casting a vote for Trump. He argued that the Electoral College system was antithetical to the principle of one person, one vote.
Birke’s complaint was dismissed at the federal district court, on the theory that the Constitution itself specifies the Electoral College as a method of selecting the president and that there is no freestanding constitutional right of individual voters to elect the president. Birke has appealed that decision. He is not interested in flipping electors; he wants to get rid of the whole system.
Another lawsuit in Florida seeks to unbind the state’s 29 electors there from having to vote for Trump, who won the state. Electors in California and Washington state have also filed similar lawsuits.
Meanwhile, two separate legal groups have sprouted up to offer advice or to defend any of the 538 national electors if they wish to file lawsuits or otherwise challenge the system.
One of them is Electors Trust, created by Harvard law professor Lawrence Lessig.
Another is Hamilton Defenders, made up of attorneys in Colorado, Texas and the Washington, D.C. area. Wesoky, the attorney for Colorado’s two electors in the lawsuit, is a founder of Hamilton Defenders. His clients refer to themselves as Hamilton Electors. They believe the Founding Father meant for the Electoral College to act as a deliberative body and stop someone unqualified from becoming president.
Nemanich, one of the plaintiffs in the Colorado suit, says he is not sure how he will vote if his lawsuit is successful but the plan to unite behind an alternative to Trump through the Electoral College falls through.