Springs man at the heart of federal lawsuit to upend the Electoral College 

A right to be heard

click to enlarge Elector Bob Nemanich (right) alleges Secretary of State Wayne Williams (left) intimidated him and two other electors into voting against their consciences. - COREY HUTCHINS
  • Corey Hutchins
  • Elector Bob Nemanich (right) alleges Secretary of State Wayne Williams (left) intimidated him and two other electors into voting against their consciences.
Last November, from his downtown Colorado Springs home, local math educator Bob Nemanich, one of the 538 members of the Electoral College, helped launch a movement to try to change the way the United States chooses its president.

Nearly a year later, he is still fighting.

Nemanich is named as a plaintiff in a federal lawsuit filed by national election law expert, Harvard Law School professor and attorney Lawrence Lessig, who briefly ran for president in 2016 before dropping out ahead of the Democratic primary. The suit claims Colorado’s Republican secretary of state, Wayne Williams, intimidated Nemanich and two other electors into voting for Hillary Clinton during the official Electoral College vote on Dec. 19 at the state Capitol in Denver. The suit seeks $1 in damages, plus legal fees.

But the lawsuit is bigger than that.

The legal action, filed in U.S. District Court in Denver, aims to answer a major question once and for all, before the 2020 presidential election: Do members of the Electoral College have a constitutional ability to vote for whomever they want?

“Regardless of what you believe the law is, it’s really important that it be clear before the next election,” Lessig says.

As for Nemanich, he hopes that the Electoral College system, created at the 1787 Constitutional Convention and around in its current form since 1804, winds up being abolished altogether. “I would love to see me known as one of the last Colorado electors,” he says.

The Electoral College is the mechanism that the U.S. Constitution requires for electing presidents and vice presidents. Each state is awarded the same number of electors as it has senators and representatives in Congress. Except for Maine and Nebraska, states award electoral votes in a “winner take all” format, meaning electoral votes are preordained. (Thus Nemanich maintains he was pressured to vote for Clinton because she won Colorado’s popular vote.) The results of the Electoral College vote have only differed from the popular vote in four elections: 1876, 1888, 2000 and 2016.

In Colorado, the two sides of the Electoral College lawsuit currently are trying to work out a way to get the case in front of the nation’s highest court as soon as possible. Deputy Secretary of State Suzanne Staiert says if the plaintiffs are willing to drop a claim for attorney’s fees and sue Colorado’s Secretary of State’s Office instead of Williams personally, her 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.

“This has never been a bluff, and this was never about money,” says Denver attorney Jason Wesoky, who is also representing the electors. “It’s about getting the question about whether electors have the freedom of choice before the U.S. Supreme Court.”

Last spring, Nemanich, a longtime local Democratic activist who holds an official role in the county party, won a low-key election to become one of the 538 members of the Electoral College.
The large man with a shock of white hair and glasses was a supporter of Bernie Sanders at a time when Sanders supporters were flexing their muscle within the state party apparatus. Nemanich printed out business cards saying he was running for what he figured would be a largely ceremonial post. He pledged to support Sanders throughout Colorado’s byzantine caucus process and he beat out a well-known local college professor to become an elector. The most he figured he’d get out of the job was seeing his name in the National Archives.

Then, on Nov. 8, Donald Trump won more Electoral College votes than Hillary Clinton; Clinton conceded the presidential race the following day.

“I realized at that moment that this was not going to be a ceremonial situation,” Nemanich recalls. He and eight other electors from Colorado, all Democrats because Clinton won the state, were scheduled to cast their official votes at the state Capitol in Denver the following month on Dec. 19.

Nemanich didn’t know what he was going to do.

Inside his home in the Shooks Run neighborhood, stacks of books from the public library started piling up and he tore through them. They ranged from tomes about constitutional history to investigations into the Deep State. Following the election, news about Russian meddling had bubbled up. It didn’t take long for some to wonder whether Trump’s path to the White House could be thwarted through the Electoral College process. Soon, some of those 538 Electoral College members, Nemanich among them, morphed from faceless drones into near folk heroes. Nemanich got his name in the paper and appeared on TV. A letter arrived at his home from someone he did not know who urged him to work with his colleagues to select “an individual who is more suited to the highest office in our land.” He told his school’s principal that he was a national elector and said he hoped things didn’t get “too hot.”

In the coming weeks, Nemanich and others launched a movement called the Hamilton Electors. It was a nod to Founding Father Alexander Hamilton who wrote in The Federalist Papers that the Electoral College should act as a safeguard against the popular election of a demagogue or someone without the “requisite qualifications” of being president.

In Colorado, Nemanich and two other electors, former lawmaker Polly Baca of Denver and an Uber-driving Marine Corps veteran and college student named Micheal Baca (no relation to Polly), became the faces of the Hamilton Elector movement. Another elector from Greeley, Jerad Sutton, a math teacher himself, was also on board. If they could convince enough of the 538 members nationwide to vote for someone other than Trump — it would likely need to be a Republican because most of the electors were Republicans — they believed they could deny Trump the presidency.

But Colorado is one of a handful of states with penalties for electors who do not cast ballots for the candidate who wins the state’s popular vote. Here, that was Clinton. So the Democratic electors, voted into their respective positions the prior spring by their local Democratic Party members, would have to disobey a state law if they wanted to vote their consciences.

Given the circumstances, Nemanich and Polly Baca lawyered up.

They went to federal court in mid-December to try to convince a judge that the U.S. Constitution allows them the ability to vote for whomever they want and to put a hold on the state law denying them that right.

The judge declined.

“Part of me thinks this is really a political stunt,” U.S. District Judge Wiley Daniel said at one point in the hearing. “I bet if Hillary Clinton had actually prevailed in the national vote ... we wouldn’t be here,” he said at another.

The following day, Nemanich and Polly Baca appeared in a state courtroom in Denver. There, a different judge had been asked to clarify what might happen to a national elector who defied the state law and did not cast an official ballot for Clinton as the deadline loomed.

“It’s possible a crime could be committed next week,” Chris Jackson, a lawyer representing the state at the time, told the judge.

Judge Elizabeth Starrs ruled the electors had to vote for the state’s popular vote winner or face repercussions. She didn’t say what the repercussions would be beyond having them removed as electors.

At the time, the Hamilton Electors movement seemed the last hope for those shocked by Trump’s election, offering some small hope that he might not become president. But the movement never took off. On the day the country’s national electors cast their ballots, only seven of the 538 went rogue — two Republicans in Texas, four Democrats in Washington State, and one in Hawaii. Three others tried, including Micheal Baca in Colorado.

That day at the Capitol in Denver, the scene was dramatic.

Williams presented the state’s nine electors with a new oath requiring them to pledge they would cast their ballots for the winner of Colorado’s popular vote and making it easier to charge them with a crime if they didn’t. But when it came time to vote, Micheal Baca wrote in the name of Ohio Gov. John Kasich instead, and Williams immediately stripped him of his duties and replaced him with someone else. Afterwards, Williams asked the state’s Republican attorney general, Cynthia Coffman, to investigate Micheal Baca for a potential crime, calling him a “faithless elector” who violated an oath.

Trump assumed the presidency on Jan. 20. The Hamilton Elector movement faded from the headlines. Micheal Baca moved to Nevada where he went to school to become a flight attendant.

As the first months of the Trump presidency roiled a new American landscape, some of Colorado’s Hamilton Electors closely followed each new headline about Russian influence in an election in which they played an outsized part. Colorado Springs saw the city’s largest ever protest when women marched against the new president. In April, Springs residents saw their first election ballots since Trump and ushered in a new moderate-to-progressive majority to the City Council.

Around that time, a full year after becoming members of the Electoral College, and four months after their movement collapsed, multiple Hamilton Electors started getting phone calls. Those who didn’t answer got a voice message. It was from an investigator with the state attorney general’s office asking to discuss events leading up to their Dec. 19 vote.

Williams, who lives in El Paso County and was formerly the county clerk, confirmed the investigation was about Micheal Baca’s vote for Kasich and whether he should be prosecuted.

“Coloradans need to be able to trust that the people they elect are going to do their job,” Williams said at the time about the probe. “People need to have the confidence that people aren’t going to lie and try to throw away their vote and discard the vote of 2.9 million Coloradans. So what I hope happens is, as with most sanctions, that it deters other people from trying to thwart the will of the people of Colorado.”

The Hamilton Electors who said they were contacted also said they didn’t cooperate with the investigator. Three months later, in late August, Coffman closed the case and announced she would not file charges.

“I am exercising my prosecutorial discretion so the individual cannot use our court system as a taxpayer-funded platform to capture more headlines and further flout the law,” said Coffman, who has said she is considering whether she might run for governor.

That same week, Nemanich and Polly Baca filed their lawsuit against Williams, claiming he intimidated them into voting for Clinton.

“Because of Defendant Williams’ threats, his changing of the oath, and his actions against Elector Micheal Baca, Plaintiffs felt intimidated and pressured to vote against their determined judgment,” their attorney Lessig wrote in the suit.

“Our view is that they had a constitutional discretion, which Williams interfered with through voter intimidation,” Lessig said in an interview. “Just like if he had been there at the polls and said, ‘If you vote for the Democrat I’m going to beat you up.’”

Staiert called the lawsuit “outrageous” and “ridiculous.” What the electors did, she says, was not like an ordinary voter going to the polls on Election Day and voting however they want.

“This is a situation where nine electors are bound to the vote of the 2.9 million voters in Colorado who voted in that election,” she says. “This was about these electors attempting to disenfranchise 2.9 million voters. The law is specific that they have to support the popular vote in Colorado.” Staiert says Williams was following state law and that a state court had clarified what he could do.

“I’ve known Polly Baca for years,” said Williams’ spokesperson Lynn Bartels, a former longtime political reporter. “I can’t imagine she’s intimidated by many people, including Wayne Williams.”

Two weeks ago, now out from under a cloud of potential prosecution, Micheal Baca joined the lawsuit, and Lessig amended the complaint. The civil lawsuit is against Williams personally, not in his capacity as secretary of state. It accuses him of intimidating the three electors and asks a judge specifically to find Williams violated Micheal Baca’s “federally protected rights” by depriving him of those rights to act as an elector.

The suit delves into the history of the Electoral College and relies on the U.S. Constitution and Hamilton’s writings in The Federalist Papers to argue electors have a right to vote their consciences and state laws that say otherwise are unconstitutional.

“What I do hope is that the Pandora’s box that I opened in 2016 gets clarified for 2020, because I imagine that another elector movement could occur again,” Micheal Baca says about why he joined the suit. “This is something that the courts need to clarify going forward on what the exact role of an elector is.”

Although Williams is being sued personally, he says the only actions he took were as secretary of state. He says he followed instructions from a state judge throughout the Electoral College voting process.

“I do know that they have lost repeatedly in every court that has heard their matter,” Williams says of the electors who are suing him. “I expect that the courts will continue to support the rights of the 2.9 million voters in Colorado whose votes they tried to steal.”

Lessig says the plaintiffs aren’t in the lawsuit for money and have capped their damages at a dollar. He says he hopes for a quick ruling that answers the question about whether members of the Electoral College can vote their conscience.

Nemanich has been following recent news of the federal investigation into Russian meddling in the 2016 election, and how it now includes a probe into Russian-bought Facebook ads before the election that targeted people by demography and where they lived.

“The Electoral College was conceived when we only had country roads and people who traveled by horse or carriage,” Nemanich says. Hamilton, he notes, likely would have never thought of the internet or its power to allow a foreign interest to sway an election.

If the U.S. Supreme Court eventually hears this case and decides that members of the Electoral College can vote their consciences, imagine what might happen. Following a presidential election there would essentially be another election waged for the votes of the 538 national electors. Williams, commenting on the lawsuit, made the same point.

“If electors are free agents, then voters would want to screen who those [electors] are in a very different way,” he said.

Campaigns to become a national elector would be enormous. Maybe then, Nemanich says, people would be outraged, and move to obliterate the Electoral College.

“I’m just sitting here,” he says, “as an ordinary citizen saying, ‘This is wrong.’”

Reporting for this story originally appeared in the Colorado Independent nonprofit online news site.

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