“Faithless electors” file lawsuit against Colorado to open door for anti-Trump movement

Two so-called “Hamilton electors” think a state law that binds them to the winner of Colorado’s popular vote is unconstitutional.

Buttons worn by bipartisan judges in Denver. (Andrew Kenney/Denverite)

Two Democratic electors have filed a lawsuit as part of a long-shot strategy to defeat Donald Trump’s presidency at the electoral college.

It’s a complicated plan, but here goes: U.S. presidents are not directly elected by the voters, but instead by the “electors” that each state sends to the electoral college.

These electors are expected to vote as their state’s voters did, but the electors don’t really have to, at least according to federal law. In fact, four of the Democratic electors from Colorado are trying to start a revolution. They say they’ll support a Republican alternative, instead of Hillary Clinton, and they want Trump’s would-be electors to join them in a compromise. If they can deny Trump the required 270 electoral votes necessary to win, the presidential contest would go the the U.S. House of Representatives.

One catch: Colorado and several other states make it illegal to disobey the voters and become a “faithless” elector. In fact, electors have to sign an affidavit saying they’ll support the winner of the state’s popular vote, and it’s a misdemeanor under Colorado law for a public officer — which the electors will be — to disregard the election code.

The Secretary of State has promised to “remove” any elector who fails to do so, according to the lawsuit. They also may face a misdemeanor under Colorado law, according to Lynn Bartels, spokeswoman for the secretary of state.

Polly Baca, a former state senator, and Robert Nemanich, a math teacher, are suing the state of Colorado to get rid of that restriction.

The United States’ 538 electors will make their votes on Dec. 19, less than two weeks from today. The Colorado electors meet in the governor’s office of the state capitol, and they get $5 for their troubles.

The lawsuit, which names Gov. John Hickenlooper, Attorney General Cynthia Coffman and Secretary of State Wayne Williams, was filed in federal district court Tuesday afternoon, Dec. 6. The central thrust is that the state law violates the U.S. Constitution and the original conception of how the electoral college would work. The plaintiffs, represented by attorney Jason Wesoky, argue that it’s tantamount to “forced speech.”

Their filing states that electors “are entitled to exercise their judgment and free will to vote for whomever they believe to be the most qualified and fit for the offices of President and Vice President, whether those candidates are Democrats, Republicans, or from a third party.”

The lawsuit seeks a temporary restraining order that would freeze enforcement of the law in Colorado. A victory for the rogue electors would allow Colorado’s nine voters to switch from Democratic to a third party or another Republican. If the law is declared unconstitutional, it perhaps could allow for other states’ laws to be neutralized.

Thirty states have laws binding electors to candidates, according to the National Conference of State Legislatures.

It’s not really clear how many Republicans would go along with this. One Republican elector in Texas announced he would not vote for Trump, and another resigned to allow a faithful elector to take his place.

Trump currently has 306 electoral votes to Clinton’s 232, according to CNN. Whomever gets 270 wins, which means that 37 electors would have to defect to derail Trump.

The last time an elector crossed party lines was in 1972, when an elector who was supposed to go for Republican Richard Nixon instead supported Libertarian John Hospers, according to NCSL.

Secretary of State Wayne Williams does not think this is cute.

Here is his statement in its entirety:

Since 1959, Colorado law has required electors to vote for their pledged candidates. Coloradans cast their votes based on these pledges. 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.

Instead of honoring the will of the Coloradans who voted for them, these two faithless electors seek to conspire with electors from other states to elect a president who did not receive a single vote in November. Indeed, the very Federalist 68 they cite cautions us that “every practical obstacle should be opposed to cabal, intrigue, and corruption.” Yet that is exactly what the electors here have succumbed to: cabal, intrigue and corruption. The court should reject this illegal conspiracy.

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. 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.”

Simply stated, there is no honor in their actions, and my office will vigorously defend the will of the people of Colorado over two faithless individuals who refuse to uphold their pledge to give voice to Colorado’s electorate at the national level.

Jason Wesoky, an attorney for the electors, said Trump is exactly the type of candidate the founders had in mind when they created the electoral college.

“The founders themselves, as outlined in Hamilton 68, clearly disagree with the secretary of state,” he said. “The intent of the framers was to have a small group of electors have an opportunity to deliberate and investigate who would be the most fit and qualified person, and they should be removed from the heat and ferment of the people so they would rise about the influence of a demagogue.

“If you look up the dictionary definition of a demagogue, you would be challenged to find someone who fits it more to a tee than Donald Trump,” he added.

That dictionary definition, by the way, is, “a leader who makes use of popular prejudices and false claims and promises in order to gain power.”

Assistant Editor Erica Meltzer contributed to this report.

Andrew Kenney

Author: Andrew Kenney

Andrew Kenney writes about public spaces, Denver phenomena and whatever else. He previously worked for six years as a reporter at The News & Observer in Raleigh, N.C. His most prized possession is his collection of bizarre voicemail. Leave him one at 303-502-2803, or email akenney@denverite.com.