Two members of Colorado’s Electoral College class of 2016 have filed a lawsuit against Secretary of State Wayne Williams saying the Republican intimidated them into casting votes for Hillary Clinton in December.
The plaintiffs in the suit are former lawmaker Polly Baca and Colorado Springs math teacher Bob Nemanich. Nationally known Harvard Law professor Lawrence Lessig, a political activist who briefly ran for president in 2016 on a campaign finance reform platform, filed the suit in U.S. District Court in Colorado this week.
The latest legal action again shines a national spotlight on the role of the Electoral College and how a Colorado elector made history last year when he broke with state law and tradition by casting his vote for someone other than the state’s popular vote winner. The lawsuit aims to determine once and for all whether the 538 members of the Electoral College can vote for whomever they want in future presidential elections, or if they should be bound by state laws that tell them how to cast their votes.
In Colorado, Baca and Nemanich were part of a small movement among the nation’s 538 members of the Electoral College who hatched a plan to try and keep Donald Trump from the White House. They wanted to deny Trump the 270 Electoral College votes he needed to take office.
But Colorado is like a handful of other states with laws saying electors must cast their ballots for the candidate who wins the state’s popular vote. Here, that was Hillary Clinton. And while both Baca and Nemanich are Democrats, they wanted to vote for someone else— perhaps Ohio Gov. John Kasich or another moderate— with hopes that enough other national electors would do the same to block Trump. They called themselves Hamilton Electors, a nod to founding father Alexander Hamilton who believed the Electoral College could be a way to keep a demagogue from the White House if necessary. Prior to the Dec. 19 Electoral College vote, Polly Baca and Nemanich filed a lawsuit in federal court seeking to allow them to vote their conscience, but it was unsuccessful. A state judge ruled that electors could be removed and replaced if they didn’t cast their ballots according to state law.
The Hamilton Elector plan did not pan out nationally, either— in the end fewer than a dozen took part— and in Colorado it led to a day of chaos on Dec. 19 when the state’s nine electors arrived at the state Capitol to cast their votes. One elector, Micheal Baca (no relation to Polly) voted for Kasich, becoming the first elector ever in Colorado to go rogue. Polly Baca and Nemanich voted for Clinton— and in their lawsuit this week they say they were intimidated into doing so.
In the middle of the drama is Williams, the Republican secretary of state who now jokes he never fought harder to get a Democrat elected by defending the state law requiring electors to cast their votes for Clinton. On the day of the Electoral College vote he used his rule-making authority to change the oath Colorado’s electors would take before casting their ballots. The new oath required the electors to swear they would vote for the state’s popular vote winner.
“The new oath, created just moments before the Electors’ vote, increased the pressure on Plaintiffs to vote for Hillary Clinton and Tim Kaine regardless of Plaintiffs’ determined judgment,” reads a portion of the new lawsuit against Williams.
When Micheal Baca cast his vote for Kasich, Williams had him removed as an elector. Williams then asked GOP Attorney General Cynthia Coffman to investigate and potentially prosecute Micheal Baca for being a so-called faithless elector— something Williams said he planned to do if an elector went rogue. The Colorado Independent confirmed an investigation into Micheal Baca was still ongoing as recently as late April. The status of the investigation is unclear; a spokesperson for the attorney general did not respond to questions about an update.
“Because of Defendant Williams’ threats, his changing of the oath, and his actions and against Elector Michael Baca, Plainitiffs felt intimidated and pressured to vote against their determined judgment,” reads the recently filed elector lawsuit.
“Our view is that they had a constitutional discretion, which Williams interfered with through voter intimidation,” Lessig told The Independent in an interview Tuesday. “Just like if he had been there at the polls and said if you vote for the Democrat I’m going to beat you up.”
The lawsuit seeks money to pay for the cost of the lawsuit, and any more money a judge thinks is appropriate to award the two electors.
“Whether you agree that they have a constitutional right to vote how they want or not, this election has opened up the door, and it’s really important for the Supreme Court to clarify what the rule is,” Lessig says. “We don’t want to get another close election and have this uncertainty affect the actual results. Either way the court ought to clarify, and our hope is this we’ll have a vehicle to give them a chance to do that.”
Colorado’s deputy secretary of state, Suzanne Staiert, called the lawsuit “outrageous” and “ridiculous.”
What the electors did, she says, was not like an ordinary voter going to the polls on Election Day and voting however they want.
“This is a situation where nine electors are bound to the vote of the 2.9 million voters in Colorado who voted in that election,” she says. “This was about these electors attempting to disenfranchise 2.9 million voters. The law is specific that they have to support the popular vote in Colorado.”
Staiert says Williams was following state law and that a state court had clarified what he could do. The secretary of state’s office will file a motion to dismiss the suit, she said.
“I’ve known Polly Baca for years,” says Williams’s spokeswoman Lynn Bartels, a former longtime political reporter. “I can’t imagine she’s intimidated by many people including Wayne Williams.”
Polly Baca and Bob Nemanich didn’t return calls or emails before this story was posted.