Editor's note: This story first appeared in The Colorado Independent.
DENVER — An attorney representing the state grilled two members of Colorado’s Electoral College in a downtown Denver courtroom Tuesday, asking whether they intend to violate a state law that says they must cast their ballots for the presidential candidate who won the state.
Since Election Day, electors Polly Baca of Denver and Bob Nemanich of Colorado Springs have been part of a Hail Mary effort to block Donald Trump from the White House by voting for someone else — and persuading their fellow electors to do the same.
Because more national electors are Republicans, the alternative likely would have to be a Republican.
But as a Monday deadline for the national electoral vote looms, these electors have begun to look like martyrs for what they see as the true function of the Electoral College: The right to vote their consciences.
Citing the writings of Alexander Hamilton in the Federalist Papers, Baca and Nemanich say just because the Electoral College has never had to break the glass in case of emergency doesn’t mean the glass is shatterproof.
And so twice this week, the two Colorado electors found themselves in court.
Yesterday, a federal judge threw out a legal filing by the two electors requesting a hold on enforcement of state law so they could vote their consciences. A federal lawsuit seeking to find the state law unconstitutional, though, is still pending.
Today’s court hearing was in Denver District County court where Secretary of State Wayne Williams asked Judge Elizabeth Starrs to clarify what sanctions the state could impose on the electors should they defy state law. What, state officials asked, could they do with electors who go rogue, something that has never happened in Colorado.
“It’s possible a crime could be committed next week,” Chris Jackson, a lawyer representing the state, told the judge.
An attorney for the electors, Jesse Witt, argued the state was asking the judiciary to put on a lawmaker’s hat, draft legislation, and then sign it into law like a governor.
“This is a clear case of legislating from the bench,” he said. The electors should have the right to vote their consciences without the threat of criminal punishment. That was how the Founding Fathers envisioned the Electoral College, he said.
“This is not a rubber stamp, this is not a ministerial act,” he said. “This is an important part of our democratic republican government.”
Witt said if the act of casting a vote for whoever won the state involved no deliberation among electors then what was the purpose of the state’s Electoral College members? Why even have humans involved?
“If it was a ministerial duty we could just do this by computer,” he said.
After three hours of testimony from both sides, including the state hauling the electors up on the witness stand, the judge ruled against the electors. They must vote for the winners of the popular vote in the state — Hillary Clinton and Tim Kaine — or, the judge said, “there will be repercussions.”
She did not say, however, what those repercussions would be beyond removing them as electors.
The setback was the second in an unprecedented series of events that have played out in Colorado over the past few weeks. The defiant stand of the Hamilton electors has drawn the interest of C-SPAN, which might broadcast live from Monday’s vote-casting ceremony, and it has brought heightened public attention to how the Electoral College works. It even drew the attention of Trump himself who intervened in yesterday’s federal hearing.
The federal judge on Monday said he believed the attempt by a handful of national electors to try and deny Trump the presidency was a “political stunt.”
Tuesday’s courtroom action added to the week’s drama.
Approaching the electors as if they were on trial, Jackson peppered them with questions about how many other electors they had spoken to about their effort to dump Trump by way of their positions in the Electoral College.
“Sitting here today do you intend to vote for Hillary Clinton for president and Tim Kaine for vice president?” Jackson asked Baca, a former state senator and longtime Democratic Party activist.
“I don’t know,” she replied.
Jackson asked if she spoke to other electors about a “plan” to violate state law. Baca hedged, saying she did not know if such a “plan” exists.
Later, speaking to The Colorado Independent
, Baca characterized her outreach to other electors as an “effort” or a “strategy,” but not a plan. They have been talking about their options, she said. But at this point any real movement hasn’t gelled.
So far, only 10 out of the 538 electors are on record saying they want to vote their conscience in order to stop Trump. Four are from Colorado, including Baca and Nemanich. They hope to get around 270 to agree. They call themselves Hamilton Electors in honor of Alexander Hamilton who viewed the Electoral College as a deliberative and investigative body created as a fail-safe against an unqualified president.
“Mr. Nemanich you’re next in the hot seat,” the judge said as Baca stepped down from the witness stand.
Nemanich is a math teacher from Colorado Springs and was an early supporter of Bernie Sanders. He and Baca were subpoenaed to show up in court because they were the ones who filed the federal suit, and they had made statements to media indicating they might violate state law at noon on Monday when they have to cast their official votes.
Like Baca, Nemanich told the state’s lawyer he didn’t know how he would vote Monday.
Jackson asked how many other electors he has spoken with since the election.
“Probably 10,” he said.
There are only nine electors in Colorado, all Democrats.
Under oath, Nemanich said he intends to follow all the laws faithfully, but that anything could happen before then. Who knows how his appeals in his federal lawsuit will shake out, he said.
“My mind,” he said, “is still considering what the situation is.”
Later, during a break in the hearing, Nemanich told The Colorado Independent
he had no plans of going to jail. During the same break, Republican Secretary of State Williams approached Nemanich and the two made pleasant small talk about where Nemanich teaches high school.
The in-person encounter was starkly different from the uncharacteristically harsh response Williams had for Nemanich and Baca in response to their federal lawsuit. He called their strategy “arrogant,” “evil,” “odious,” and part of an “illegal conspiracy.”
Toward the end of the hearing, Judge Starrs said she wished she had a couple weeks to rule — but doesn’t.
In six days Colorado’s nine electors will travel to the state Capitol where they will swear an oath and then sign two pieces of paper, which go into the record books for the official Electoral College tally of the 2016 presidential election.
Ben Schler, who handles the Electoral College administration for the Secretary of State’s office, said Clinton and Kaine’s names already will be printed on the paperwork for the electors to sign in public view. He said it is unclear exactly how an elector would go about voting for another choice. That never happened before. Asked what might happen if an elector chose to just sit there and do nothing, he smiled, shook his head, and shrugged. All new territory.
Following the ruling, Williams noted that district attorneys and the attorney general make the decisions on whether to prosecute someone.
“I think clearly if you take an oath that says you’re going to follow the law and immediately within minutes break that oath, I think that’s of severe consequence, but I think the electors will think about that,” he said.
Outside, in the marbled hallway of the courthouse, Witt put on a brave face, saying the nationwide Hamilton Elector effort has turned a floodlight on how the Electoral College should really work in a time when it is needed most.
“I think this has always been about more than just Colorado,” he said.