DENVER — It was a history lesson and a chance to make history in a federal courtroom Monday afternoon where a judge ruled how the Electoral College works — or doesn’t — will remain unchanged.
At least for now.
Around 5 p.m., U.S. District Judge Wiley Y. Daniel denied a temporary restraining order and an injunction to stop Colorado from enforcing a state law that says electors must vote for the presidential candidate who won the state.
The injunction and restraining order were part of a landmark lawsuit, brought by two Colorado electors, both Democrats, that seeks to declare the state law unconstitutional. The electors are former Democratic Sen. Polly Baca and Colorado Springs math teacher Bob Nemanich.
Their lawyer Jason Wesoky told the judge that the law unfairly “coerces” the Electoral College members to vote for Hillary Clinton simply because she won more votes than Donald Trump in Colorado. The electors, together with about eight others from around the country, believe they should have the ability to vote their consciences — they want an alternative to Donald Trump — as part of a larger plan to persuade enough of them to do the same and keep Trump from the White House.
On the other side was an assistant state solicitor, Grant Sullivan, arguing on behalf of Colorado, and Chris Murray, a lawyer representing Trump and the state Republican Party.
The three-hour court hearing wound through the pages of the nation’s founding documents, through obscure court decisions in multiple states over the years and through those decisions not so obscure, such as the 2000 Supreme Court decision in Bush v. Gore. It hit on Western themes like “High Noon,” the time of day electors are scheduled to cast their votes on Dec. 19, and dredged up the more controversial aspects of the 2016 presidential campaign, such as FBI director James Comey’s disclosures about Clinton’s emails.
“Part of me thinks this is really a political stunt,” the judge said at one point. “I bet if Hillary Clinton had actually prevailed in the national vote … we wouldn’t be here,” he said at another.
Jason Wesoky, the 40-year-old attorney for the electors, argued passionately, hands folded behind his back. The issue was larger than how his clients feel about Trump, he said, although Trump’s qualifications for high office clearly play a role.
The bottom line, Wesoky told the judge, is the country’s Founding Fathers did not want electors to act as a rubber stamp for a state’s popular vote. They wanted electors to act as a deliberative, investigative body in order to stop a demagogue if they felt it necessary. Colorado requiring his clients to vote in any way, he said, is a violation of their free speech rights and is an unconstitutional example of the state poking its nose into party politics.
And it is not so much partisan as it is about a precedent, he said.
Imagine if Clinton had won, Wesoky said, and then later the FBI disclosed evidence that she was a criminal. “You bet your bottom dollar they would be here,” he said about Republican electors, gesturing toward Trump’s attorney. Wesoky said that all he was asking was for a court to decide once and for all that members of the Electoral College have the power to vote as they please, not bound by state law or anything else. As the Founding Fathers envisioned.
“They must be able to exercise their free will,” the lawyer said calmly, at times shuffling paperwork marked with a yellow highlighter.
The courtroom was so full some observers had to stand. At times they chuckled, particularly when the judge drew attention to how many showed up to watch a hearing about the Electoral College, which he noted, few people seriously understand. Seated at a table near their attorney, Baca smiled often and Nemanich appeared in serious concentration as the arguments unfolded. The two did not expect when they ran to become national electors seven moths ago that they would end up plaintiffs in a federal court case.
Leafing through a large bound book and a sheaf of printed pages, Judge Daniel, appointed by former President Bill Clinton in 1995, asked pointed questions, his degree of skepticism appearing to rise with each one. But he regarded the issue solemnly, he said. He understood the importance of this case along the arc of history. He said he was pleased to see such a packed courtroom, an indication of how much the issue is in the public interest.
“I think what is being requested here is extraordinary,” he said at one point.
Lawyers for the state, the GOP, and Trump, agreed. And so they argued the judge should keep the status quo in place.
Gesturing with a pen in hand, Sullivan, a tall man with a thin beard, asked the judge to imagine what might happen if the election of a president really did come down to the whims of 538 members of the Electoral College on Dec. 19. There would essentially be a second presidential campaign after Election Day, he said. Should each elector be subject to campaign finance and lobbying laws?
On Nov. 8, Coloradans chose Hillary Clinton, he said, and the case was about protecting those 1.3 million voters. Those voters expect, he said, that the nine men and women selected by party activists as electors in the spring will be “faithful” and vote for Clinton since she won in November. There are nine electors because that’s how many members of Congress Colorado has. They are all Democrats because Clinton won the state.
When Murray, the crisp-suited attorney representing Trump and the state Republican Party, took the podium, he turned to face one side of the courtroom and then the other.
“We are dealing with recalcitrant state officials,” he said, gesturing toward Baca and Nemanich.
They knew what they were getting into when they ran to become electors, he said. They signed a pledge to vote for whoever won the state. If Clinton voters come to find out on Dec. 19 that their vote didn’t matter, he said, those voters will be harmed.
“It is a serious thing, your honor, to take someone’s vote away,” Murray said.
Off to the side, electors Baca and Nemanich watched as their own attorney argued that the judge had the opportunity to make history and rule on a question never before considered by a federal court: How should the Electoral College work as a fundamental concept?
“There is no precedent,” Wesoky said. “We are truly in uncharted waters.”
He said he understood the discomfort a judge might have wading in those waters. He asked the judge to save the Electoral College— “reinvigorate the purpose” he said — from tradition and unconstitutional state laws. If not now, then when? If the judge ruled against Baca and Nemanich, Wesoky said, the judge essentially would be amending the U.S. Constitution by determining the role of national electors.
Judge Daniel waved off the remark. The judge would not be doing that, he said in apparent amusement.
After three hours, Daniel denied the electors’ request of a temporary restraining order stopping the state from enforcing its law.
The electors, he said, had signed a pledge. They are bound by promises they made when they took the job. If they have a problem with the law, he suggested, go to the General Assembly and get the law changed.
The voters who cast their ballots for Clinton would be harmed, the judge said, if these Democratic electors were allowed to vote for someone else. Ruling otherwise would “undermine the electoral process.” He said the electors were engaged in a plan to vote for someone else, “for reasons that don’t make sense to me.”
Following the hearing, Murray said Trump and the state Republican Party did not win.
“Our electoral process won,” he told The Colorado Independent. “When people go to the polls and they vote for president and vice president they want their vote to count.”
Outside in the hallway, Wesoky vowed to press on, perhaps asking for an emergency appeal to the 10th Circuit.
He said he still believes the Electoral College members have the right to vote for whomever they want.
“We do think that the country ignores the prescience of our founders at its peril,” he said. “Just because the emergency brake hasn’t had to be pulled at any time in our history doesn’t mean that it is something that shouldn’t be used when necessary.”
As he traveled down the courthouse elevator, Nemanich said he would not be driving back to the Springs that evening. He has been subpoenaed, he said, in a related state court case set for the following day brought by the Secretary of State.
The aim of that particular hearing is to clarify what exactly will happen to these self-styled Hamilton Electors if they do decide to try and cast a vote for someone other than Clinton. Violating state law and voting for someone other than Clinton would be a misdemeanor— “the hammer of state government,” Wesoky said.
Asked what his clients might do on Dec. 19, at High Noon, Wesoky said they still plan to vote their consciences— even if that means leaving the state Capitol in handcuffs.