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DENVER – The long-shot attempt by two of Colorado’s Electoral College voters to put someone in the White House not named Donald Trump grew short legs Tuesday when the electors filed a lawsuit against Colorado’s secretary of state, governor and attorney general saying they shouldn’t have to vote for Hillary Clinton as state law requires.
Robert Nemanich, of Colorado Springs, and Polly Baca, a former state senator from Denver, filed the suit Tuesday in U.S. District Court of Colorado after a week of posturing – saying they would work with other electors from across the country to make someone other than Trump president.
They 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.
Colorado’s official vote has yet to be finalized, but unofficial results show Clinton won 48.1 percent of the vote, compared to 43.25 percent for Trump.
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 argue 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.
Baca and Nemanich’s attorneys go so far as to cite Alexander Hamilton writing in The Federalist Papers, when he wrote that electors would be “most likely to possess the information and discernment requisite to such complicated investigations” such as this election and that they should be free to vote for a candidate who doesn’t have “talents for low intrigue, and the little arts of popularity.”
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.
Baca told Denver7 on Sunday she might be willing to cast a vote for John Kasich, John Hussman or Mitt Romney – “somebody who we know cares about this country and will follow the laws of this country,” she said.
Kasich said Tuesday that electors should not vote for him in a Trump protest.
SECRETARY OF STATE DOESN'T MINCE WORDS IN RESPONSE
Colorado Secretary of State Wayne Williams did not mince words in a statement regarding the lawsuit.
“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.
“Make no mistake, this is not some noble effort to fight some unjust or unconstitutional law; rather, this is an arrogant attempt by two faithless electors to elevate their personal desires over the entire will of the people of Colorado. And in so doing, they seek to violate Colorado law and their own pledges,” his statement continued.
"The very notion of two Colorado electors ignoring Colorado’s popular vote in an effort to sell their vote to electors in other states is odious to everything we hold dear about the right to vote. It is this type of evil that President Franklin Roosevelt warned us about when he cautioned that voters – not elected officials such as these faithless electors – are “the ultimate rulers of our democracy.”