Colorado’s GOP Secretary of State Wayne Williams and attorneys for three members of the 2016 Electoral College class who are suing him for voter intimidation are involved in a game of Let’s Make a Deal.
They aren’t talking about settling.
Rather, the two sides are working behind the scenes to see if they can reach an agreement that might get a case heard before the U.S. Supreme Court as quickly and efficiently as possible.
The case involves a federal lawsuit filed in August that claims Williams intimidated former national electors Bob Nemanich, Polly Baca and Micheal Baca (no relation to Polly) when Williams enforced a state law requiring them to cast their Electoral College votes for Hillary Clinton because she won Colorado’s popular vote in the 2016 presidential election.
The goal is for the nation’s highest court to answer a fundamental question about the Electoral College: Do its 538 members have the constitutional right to vote for whomever they want regardless of what individual state laws, like Colorado’s, say?
“My sole hope is that we can get this question resolved, so that there is no chance that in 2020, an election gets decided in the context of an uncertain legal question about electors’ freedom,” wrote Harvard law professor Lawrence Lessig in a recent email to a lawyer in the Colorado attorney general’s office.
Lessig represents Nemanich and the Bacas in the federal voter-intimidation lawsuit he filed in August.
The suit, which names Williams personally, claims he intimidated the electors into voting for Clinton. It also says Williams violated Micheal Baca’s “federally protected rights” when he stripped him of his position as an elector after Baca tried to cast his vote for Ohio Gov. John Kasich instead of Clinton during a much-publicized ceremony on Dec. 19. The electors were part of an ultimately unsuccessful movement called the Hamilton Electors that tried to deny Donald Trump the presidency through the Electoral College. The suit asks for only a dollar in damages and for legal fees.
Williams says he was following state law, and also followed instructions from a state judge throughout the process.
But Williams, too, would like to see the constitutional question answered by the nation’s highest court, according to Deputy Secretary of State Suzanne Staiert. And to do that efficiently, she says if the electors are willing to drop a claim for attorney’s fees in the case and switch Williams out as a named defendant for the Secretary of State’s Office instead, the office will waive immunity, which could get the case heard faster.
“We’re kind of calling their bluff so we’ll see what they do,” Staiert says.
Jason Wesoky, a Denver lawyer working with Lessig on behalf of the electors, says there never was a bluff and the lawsuit was never about money or attorney’s fees.
“It’s about getting the question about whether electors have the freedom of choice before the U.S. Supreme Court,” he says. His side, he says, is looking into whether switching out Williams as the defendant for the Secretary of State’s Office would still allow them to maintain the same legal claims they are making.
Here’s what Lessig put forward in a Sept. 21 email to a lawyer in the Colorado AG’s office:
We have between us a genuinely difficult question of constitutional law. It is also an important one. On my faculty, there would be constitutionalists on both sides of the question whether electors are constitutionally free. But there would be no disagreement about whether this was an important question for the Court to resolve. After 2016, it is critically important to the process of electing our President that the rule be clarified one way or another. I have my view of the law, but I certainly believe that resolving the matter clearly is more important than whether any particular view prevails.
The legal hope to get the case before the U.S. Supreme Court is that a federal judge in Denver rules for or against the electors in their lawsuit against Williams or dismisses the case. The losing side would appeal, and the case would bump up to the federal 10th Circuit Court of Appeals.
In that scenario, lawyers for Colorado would argue the state law is valid and properly restrains electors from voting for whomever they want. Lessig would argue that historically the Electoral College was set up to allow electors to vote their consciences.
Secretary Williams says that if Colorado’s electors had gone rogue and were allowed to do so, the electors would “steal” the votes of 2.9 million Coloradans who cast ballots for Clinton in November.
A similar case is pending in Washington State. Should that case end up before the 9th Circuit Court of Appeals and that court rule differently than the 10th Circuit, the split decision on a matter of national significance opens a path for the Supreme Court to make the ultimate decision.
If the Supreme Court ruled electors do have the right to vote their conscience regardless of pledges or state laws, the influence of national electors would be tremendous. Campaigns to become one could rival that of a Congressman or even a president.
“If electors are free agents then voters would want to screen who those [electors] are in a very different way,” says Williams.
Perhaps then, says Nemanich, one of the plaintiffs in the case, more people would pay closer attention to what he sees as an Electoral College system that should be scrapped altogether.
That’s also one reason the potential for the nation’s highest court deciding the role of national electors intrigues George C. Edwards III, a professor of political science at Texas A&M University and author of the book “Why The Electoral College is Bad for America.”
“I’d like to see it cleared up for the following reason,” he told The Colorado Independent. “I think it would help put another nail in the coffin of the Electoral College. It’s a terrible system to begin with and it’s even worse if you have faithless electors.”