'Faithless Electors' Sue to Protest State Law

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December 6, 2016

Three Colorado people selected by the Democratic Party to be presidential electors have filed a lawsuit in federal court, alleging that their state's law governing electoral practice is unconstitutional.

The Coloradoans are Polly Baca, a former state senator who has been an elector since 1960, Robert Nemanich, and Jerad Sutton. Their claim is that Colorado's law that stipulates a $1,000 fine for an elector who refuses to vote as instructed violate the 14th Amendment equal protection clause because it removes from electors the right to choose for whom they cast their votes. The lawsuit also claims that the Colorado state law removes the electors' First Amendment right to freedom of speech; essentially, the electors are arguing that voting is a protected form of speech.

The Electoral College was a creation of the Founding Fathers and was designed to have the President elected by party officials or knowledgeable people or someone other than the common people, who may or may not know enough about presidential candidates to make an informed decision. That has been the established theory, anyway.

In the vast majority of the presidential elections in America, the electoral vote has been in lock step with the popular vote. A few exceptions have occurred through the years.

In another recent "faithless" development, Chris Suprun, a Republican elector from Texas, has declared publicly that he will vote for someone other than Trump, who won Texas. Texas does not have a law that binds its electors' votes. Already, another Texas elector has resigned, rather than casting a vote for Trump.

As enshrined in the Constitution, the Electoral College formally elects the President, in meetings in each individual state on the same day in the month after the presidential election. The 2016 date is December 19.

A presidential candidate needs just more than half of the 538 possible electoral votes in order to be declared President; the magic number is 270.

Republican nominee Donald Trump won the popular vote in states whose electoral votes total 306; his main opponent, Democrat Hillary Clinton, won the popular vote in states whose electoral votes total 232.

Members of the Electoral College have nearly always done what they have been instructed to do by their political party, regardless of whether their state has laws compelling them to do so. As well, the electors for each state are selected from within the political party of the candidate who got the most popular votes in that state. So a Republican nominee who wins a state has technically won the right to have that party's slate of electors go to the Electoral College.

The electoral protesters, however (with the exception of Suprun), are all from states in which Clinton won the popular vote. The latest to speak out, 19-year-old Levi Guerra from Washington, said that she would cast her electoral vote not for Clinton but for another member of the Republican party, as a protest against the election of Trump. Two other Washington electors have voiced similar opposition to voting as they have been instructed, meaning for Clinton, saying that they will publicly protest the election of Trump by voting for someone else entirely. Four electors from Colorado have publicly made similar pledges.

The protesters have styled themselves "Hamilton" electors, named after the first American Secretary of the Treasury and architect of much of the modern economy and system of government, Alexander Hamilton. Along with John Jay and James Madison, Hamilton wrote a large series of newspaper epistles that constitute an impassioned defense of the Constitution; together, they are called The Federalist Papers. The "Hamilton" electors cite these words from Federalist No. 68, written by Hamilton: “The process of the Electoral College affords a moral certainty, that the office of the President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

If these electors become, in effect, "faithless," then that would be the first time of such faithless vote-casting since 2004, when a Democratic elector from Minnesota mixed up the candidates and cast a presidential vote for John Edwards, the vice-presidential nominee, and a vice-presidential vote for presidential nominee John Kerry.

The last Electoral College at which more than one elector refused to follow suit was in 1912. William Howard Taft was running for re-election, and his running mate was James Sherman, who died before the election. Eight Republican electors voted not for Sherman but for Nicholas Butler.

Both Colorado and Washington are among the 29 states that have laws that effectively convince their electors to vote as instructed by stipulating that the punishment for not doing so is a $1,000 fine.

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