DENVER – A federal judge in Colorado on Monday denied a motion filed last week by two Colorado electors who want to upend the state law that requires them to vote for the presidential candidate who won the state’s popular vote.
Judge Wiley Daniel said that granting the motion to allow electors to vote against the popular vote "would undermine" the electoral process. He advised the two plaintiffs in the suit, Robert Nemanich, of Colorado Springs, and Polly Baca, a former state senator from Denver, that if they were unhappy, they should go through the Legislature to change state law.
The judge said voters had a reasonable expectation that electors should vote with the public and called the suit a "political stunt."
Nemanich and Baca filed the suit last Tuesday in U.S. District Court of Colorado against Colorado’s governor, secretary of state and attorney general. They had said for more than a week prior to filing that they would work with other electors from across the country to make someone other than Trump president.
Micheal Baca, another of Colorado’s electors, had threatened to do the same. But instead, he on Monday joined a push by other electors across the country to be briefed by the intelligence community on purported hacks allegedly carried out by Russians with ties to the Kremlin before they cast their Electoral College vote on Dec. 19.
Williams applauded the judge's decision in a statement on Twitter, saying Daniel was "extraordinarily well prepared."
Judge Daniel was extraordinarily well prepared. He had reviewed in detail & frequently cited relevant cases in his questioning. #copolitics
— Wayne Williams (@ColoSecofState) December 12, 2016
COLORADO LAW REQUIRES ELECTORS TO VOTE FOR POPULAR CANDIDATE
Colorado law requires each of the state’s nine electors to vote “for the presidential candidate and…vice-presidential candidate who received the highest number of votes at the preceding general election.”
But Baca and Nemanich had argued that the state’s rules requiring electors to vote for the winner of the state’s popular vote violate the U.S. Constitution, as well as the First, Twelfth and Fourteenth amendments.
The two are among nine electors chosen and authorized by the Democratic Party at the national convention in April and have already signed sworn affidavits they would vote for the Democratic candidates for president should they win in Colorado.
The core of Baca and Nemanich’s argument is the same as many others’ across the country – since Trump lost the popular vote by 2.6 million and counting to Clinton, he and Vice President-elect Mike Pence don’t deserve the office.
The suit says Trump is “unfit for office” for an array of reasons, including his foreign business dealings, ongoing court cases, “promises to discriminate against Muslims and Latinos,” and his belief – “against all facts – that climate change and global warming are a ‘hoax’,” among a long list.
They also point to his selection of Jeff Sessions as Attorney General and Betsy DeVos as Education Secretary as reasons he is unfit. The suit details the reasons the two believe Pence is unfit for office as well, citing an array of policies he has enacted in his home state of Indiana, of which he is currently governor.
ELECTORS' CONSTITUTIONAL ARGUMENT
Though they don’t give a specific reason in the lawsuit as to why they don’t want to vote for Clinton and Tim Kaine, as Colorado did, they say they “cannot be constitutionally compelled to vote for them,” saying they are instead “entitled to exercise their judgment and free will to vote for whomever they believe to be the most qualified and fit” for the respective offices.
They argue the Constitution doesn’t give states the ability to penalize or remove electors and that a 1952 Supreme Court judgment requiring electors to pledge their vote left open whether or not the pledge was constitutional.
The attorneys argue the state’s rule requiring electors to vote for the candidate who won the popular vote “renders superfluous the Electoral College…for if the electors are merely to vote for the candidate who won the popular vote in their state, then there is no need for the Electoral College at all” – arguing that Colorado’s system “dilutes” state electors’ votes.
The two electors and their attorneys ask the federal judge to declare Colorado’s electoral rules unconstitutional and to permanently enjoin the secretary of state, attorney general and governor from replacing or removing and elector.
SHARP REBUKE OF LAWSUIT BY STATE
Colorado Secretary of State Wayne Williams did not mince words in a statement regarding the lawsuit last week.
“Unfortunately two faithless electors – prior to even taking office – have arrogantly thumbed their noses at Colorado’s voters and have announced their intent to violate Colorado law,” Williams said.
Attorneys for the defendants said as much in their response to the motion for preliminary injunction in the case. They write that neither Baca nor Nemanich “had misgivings” with the state law between when they were nominated as electors and the general election, and say they only “developed second thoughts” after the outcome of the election.
“This Court should not countenance Plaintiffs’ attempt to dismantle the Electoral College from within. It should reject as an affront to this nation’s model of democracy this effort to disenfranchise millions of Coloradans by usurping their collective choice of candidates and replacing it with Plaintiffs’ own personal opinions about who is fit for the office of President. Holding otherwise would cause chaos,” their response reads. “This Court should decline Plaintiffs’ invitation to alter the status quo by converting the popular vote into a mere advisory opinion that presidential electors are free to ignore.”
TRUMP AND HIS CAMPAIGN INTERVENE
The Colorado Republican Committee, along with President-elect Trump and his campaign, filed a motion to intervene in the case late last week, which was granted by Judge Wiley Daniel – a Bill Clinton appointee – despite objections from Baca and Nemanich.
Their motion in opposition to the request for preliminary injunction says the two electors’ “last-minute effort to upend these laws threatens to disrupt the orderly transition of power that our nation embraces.”
Judge Daniel agreed with the attorney for the CRC, Christopher Murray, who had argued his interests and those of the governor, secretary of state and attorney general overlapped.
Murray argued that the lawsuit “threatens to impair the interests of the President-Elect and the Campaign.”
WHAT COMES NEXT?
A hearing is still set in state district court for Tuesday afternoon in which state officials will ask a judge for guidance on what to do should any electors not vote for Clinton.
Baca and Nemanich face misdemeanor charges for failure by a public officer to uphold a duty imposed by the election code if they are sworn in and fail to follow state law. They could face a fine or jail time.
The attorney for both said they were willing to face the consequences of not voting for Clinton. It's also unclear if they will appeal, though any appeal would have to go through the Tenth Circuit Court of Appeals.
The electors are set to sign the contracts and cast their Electoral College votes in front of Hickenlooper on Dec. 19.