Colorado Supreme Court declines to hear appeal from 2 'Hamilton electors'

Posted at 4:05 PM, Dec 16, 2016
and last updated 2016-12-16 20:42:24-05

DENVER -- The Colorado Supreme Court on Friday declined to hear a case from two electors who filed an emergency appeal saying they shouldn’t have to vote for Hillary Clinton as state law requires.

The decision means that if Polly Baca and Robert Nemanich fail to take their oath to adhere to their electoral duties, or fail to follow state law and vote for Clinton, both will be removed, replaced and possibly prosecuted, per a ruling from Denver District Court Judge Elizabeth A. Starrs. 

The Colorado Democratic Party would nominate any new electors to fill their positions should they be replaced.

That hearing took place after Secretary of State Wayne Williams petitioned the court for guidance on how to proceed should the electors not follow the rules.

The hearing also came on the same day that Baca and Nemanich’s lawyer, Jesse Witt, filed an appeal of their federal lawsuit that claimed Colorado’s law requiring them to vote for the winner of the state popular vote was unconstitutional.

A federal judge in U.S. District Court of Colorado denied the federal suit a day earlier, calling their motions to block the law a “political stunt” and saying if he granted the motion, it would undermine the electoral process.

Baca, a former state senator from Denver, and Nemanich, an elector from Colorado Springs, are a part of the so-called “Hamilton electors” movement that is trying to keep President-elect out of the White House and send the election to the House of Representatives for the third time ever. 

Both electors filed the lawsuit last week

Baca and Nemanich are among nine electors chosen and authorized by the Democratic Party at the national convention in April and have already signed sworn affidavits they would vote for the Democratic candidates for president should they win in Colorado.

They are set to be sworn in and to cast their vote at noon next Monday, Dec. 19.

In the appeal, Jesse Witt, the attorney for Baca and Nemanich argued that being an elector is a federal duty, and thus the Denver District Court never had jurisdiction over the statute in question (the district court judge ruled the court did have jurisdiction).

The attorney also argued that the district court’s interpretation of the Election Code amounted to an “advisory opinion” that was not in line with the actual code.

Witt said that the code lays out that casting a vote as an elector is a federal duty, pointing to a portion that says “electors shall proceed to perform the duties required of them by the constitution and laws of the United States.”

Witt also filed an emergency motion for expedited briefing and review to try and get the appeal heard before Monday at noon, writing in his motion that the dispute has “substantial implications for Colorado and the United States as a whole.”

Witt said he had been in contact with the clerk at the state Supreme Court and hopes to obtain a ruling before Monday.

Baca and Nemanich’s federal suit is not the only “Hamilton electors” suit struck down in court this week. On Wednesday, a federal judge in Washington state denied a similar suit from two electors there.

Also Thursday, The Associated Press published a story in which they interviewed more than 330 of the 538 electors and found that “this most untraditional of elections is on course to produce a traditional outcome” and that it was unlikely the “Hamilton electors” movement would be able to turn the 37 electors necessary in order to send the election to the House.


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