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Hamilton Electors now eying Supreme Court case 

Faithless move forward

click to enlarge Local “faithless” elector Bob Nemanich - ALLEN TIAN
  • Allen Tian
  • Local “faithless” elector Bob Nemanich
On April 10, a federal judge in Colorado dismissed a case its plaintiffs hope will eventually bring more clarity to how members of the Electoral College should vote in presidential elections. And a dismissal is actually just what the plaintiffs wanted. They expect an appeal could bring their case before the nation’s highest court.

At issue is a lawsuit by three members of the 2016 class of Colorado’s Electoral College who argued that Colorado GOP Secretary of State Wayne Williams violated their constitutional rights by forcing them to officially cast their national electoral ballots for the Democratic candidate, Hillary Clinton.

U.S. District Court Senior Judge Wiley Daniel dismissed the case — and in doing so, potentially helped push the legal question further up the chain on an appeal. The lawsuit goes to the heart of Colorado’s law that requires electors to vote for a candidate who wins the popular vote. Clinton won Colorado’s by 48.16 to 43.25 percent in 2016.

In a 27-page ruling, Daniel says the lawsuit aims to “strike down Colorado’s elector statute that codifies the historical understanding and longstanding practice of binding electors to the People’s vote, and to sanction a new system that would render the People’s vote merely advisory.”

The case will be appealed, says Lawrence Lessig, a Massachusetts-based national elections attorney and Harvard Law professor who represents Colorado’s Electoral college members. The case comes after the 2016 presidential election spotlighted the Electoral College, which helped Republican President Donald Trump win despite losing the popular vote.

In Colorado, four electors wanted to stop Trump from winning by voting for Republican Ohio Gov. John Kasich with the hope that Republican electors would follow suit. This was part of an ultimately unsuccessful movement known as the Hamilton Electors. (See “A right to be heard,” Oct. 4, 2017.)

But when elector Micheal Baca tried to cast his vote for Kasich, Secretary of State Williams replaced him with another elector who voted for Clinton. This came after Williams reminded all nine Democratic electors that state law requires them to vote for Clinton because she won the popular vote in Colorado.

Three of these former electors took issue with this mandate: Colorado Springs resident Bob Nemanich, Polly Baca and Micheal Baca (no relation to Polly) filed a lawsuit in August 2017 arguing they should be able to vote however they wish.

Lessig says the U.S. Constitution allows electors to vote how they please. He says state laws cannot interfere with this, just as state laws don’t require citizens to vote for a certain party in congressional or state elections. “Being an elector is to have the power to make a choice,” he says.

Williams says he was following state law, and also instructions from a state judge when he told electors to vote for Clinton. “According to the binding court decisions faithless electors can be removed, which preserves the votes of the nearly 3 million Coloradans who cast their ballots in the November election,” he said in a statement.

Laws in 29 states say electors must cast votes for whoever won the state. A similar challenge to these laws is pending in Washington State. Lessig says the hope is the U.S. Supreme Court will take up the case before the 2020 election. He’s not arguing that the Electoral College should be scrapped, but he thinks its role in elections should be more clear.

“There are solutions if people think this is a problem,” he says. “But we are at the first stage of
trying to figure out if there is a problem or not.”

This article first appeared at The Colorado Independent.

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