Denver judge: Colorado electors won't have to take amended oath of office before vote

Posted at 10:08 AM, Dec 19, 2016

DENVER – A Denver District Court judge tossed language added last week by the Colorado Secretary of State’s Office to an oath of office that nine Colorado electors are set to take Monday at noon before they cast their electoral votes.

Attorneys for two of Colorado’s electors filed an emergency motion in Denver District Court Monday morning seeking to block a new oath of office drafted last week that would ensure they would be replaced should they not perform their state-bound duty to vote for Hillary Clinton for president.

At the hearing on the motion, the judge said that the amended language would be struck from the oath, but also ruled that Secretary of State Wayne Williams has rulemaking power to amend an oath.

The original Colorado oath of office says the person does “solemnly swear by the everliving God, that I will support the Constitution of the United States and the State of Colorado, and faithfully perform the duties of the office of _________ upon which I am about to enter.”

The Secretary of State’s Office, as noted in a transcript from last week’s district court proceedings, has added “…of presidential elector that I am about to enter, and that I will vote for the presidential candidate and vice presidential candidate who received the highest number of votes at the preceding general election in this state,” to the elector’s oath.

But the judge struck the added language at Monday morning’s hearing.

Last Friday, both the Colorado Supreme Court and 10th U.S. Circuit Court of Appeals denied requests by Colorado Democratic electors Polly Baca and Michael Nemanich to appeal decisions by the U.S. District Court of Colorado and Denver District Court saying that electors were indeed bound, as Colorado law provides, to vote for the winner of the popular vote in the state.

The electors’ attorneys had filed the case in federal court, and the Secretary of State’s Office had filed the state case in order to find out how they should proceed should the electors not perform their state-bound duties.

Since Hillary Clinton won Colorado’s popular vote, the electors are bound to vote for her.

But they have been among a handful of electors nationwide – known as the “Hamilton electors” in that they have based their argument off Alexander Hamilton’s Federalist Papers language -- fighting to get someone other than Donald Trump in the White House.

Since Baca and Nemanich are Democratic electors, they would not be able to vote for Trump even if he had won Colorado. Nine Republican electors would pick the president in that case.

Judges in both federal and state courts had upheld Colorado’s rules, so Monday’s emergency filing in Denver District Court was the last-ditch attempt to try and get a judge to interpret the state and U.S. constitutions differently.

Monday’s filing argues that Secretary of State Wayne Williams’ changes to the oath of office specifically for this instance “is both improper and unnecessary,” citing a statement Williams made over the weekend to POLITICO in which he suggested that the language was added in order to force the electors to perjure themselves by taking the oath but not voting for Clinton.

The attorney who filed Monday’s motion, Jesse Witt, argued that the 10th Circuit’s ruling should be interpreted as meaning that the electors can be replaced before they take the oath of office, but not afterward.

Since the district court ruled in Williams’ favor to uphold state rules, Witt argues that Williams “has obtained the relief he wanted” and should not be able to administer the amended oath of office.

“Changing the rules on the eve of the election is improper,” Witt wrote in the filling.

Colorado’s nine electors are set to meet at the state Capitol at noon to take their oaths of office and to cast their votes.

It remains to be seen if enough electors will vote for someone who is not Trump or Clinton and see neither candidate met the necessary 270-electoral vote threshold needed for the presidency.

If that threshold is not met, the election would go to the U.S. House of Representatives and eventually be decided by the Speaker of the House.


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