Colorado AG warns of ‘chaos’ if Electoral College lawsuit succeeds – Politico
A lawsuit filed by two Colorado presidential electors as part of a strategy to stop the election of Donald Trump should be treated as an attempt to destroy the Electoral College and create constitutional chaos, Colorado’s attorney general argued Friday.
“This Court should not countenance Plaintiffs’ attempt to dismantle the Electoral College from within,” Cynthia Coffman, a Republican, argued in a filing in federal court. “It should reject as an affront to this nation’s model of democracy this effort to disenfranchise millions of Coloradans by usurping their collective choice of candidates and replacing it with Plaintiffs’ own personal opinions about who is fit for the office of President. Holding otherwise would cause chaos.”
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Coffman’s argument, supported in a separate brief by the state Republican Party, also suggested that the suit – filed earlier this week by Democratic electors Polly Baca and Robert Nemanich – was submitted too late in the election process and should therefore be considered too disruptive to the transition of power from President Barack Obama to Trump’s incoming administration.
In their own filing, the state GOP noted that Baca and Nemanich became elector candidates in April and were voted in as electors last month but waited until early December to file suit.
“Plaintiffs missed opportunity after opportunity to file this lawsuit,” argued Christopher Murray, an attorney for the GOP. “Did they sue after joining their party’s electoral slates? No. Did they sue after learning who the presidential nominees were? No. Did they sue immediately after the presidential election? No. Plaintiffs waited until the last possible moment to run to court. They have no excuse for this delay.”
Baca and Nemanich are suing to overturn a state law that requires them to support the winner of Colorado’s popular vote – in their case Hillary Clinton. But they’re hoping that a legal win undermines similar laws in 28 other states, including several in which Republican presidential electors have expressed skepticism about Trump’s candidacy. Without those laws on the books, they argue, more Republican electors might be willing to defect from Trump and support an alternative candidate.
Elector-binding laws have been on the books for decades but they’ve never been enforced or tested in court. The Bill Clinton-appointed judge, Wiley Daniel, could be the first to weigh in on the issue – unless he sides with the Colorado GOP. He’s slated to hear the matter on Monday afternoon.
In a separate state court filing also submitted on Friday, Colorado’s Republican Secretary of State Wayne Williams asked a judge for guidance on what to do if Baca, Nemanich or any other elector attempts to vote against Clinton regardless of any federal ruling decision to uphold the state’s binding law. That matter will be heard Tuesday afternoon.
In its brief, the Colorado GOP also issued a substantive rejection of Baca and Nemanich’s central claim — that the Founding Fathers intended for members of the Electoral College to vote freely, without regard to the votes in the general election. Though that may have been the intention at the time of the founding, the party argues, the Electoral College now operates under the 12th Amendment, enacted in 1804. The amendment according to the GOP, was a nod to the fact that electors should be bound to their party’s candidates.
“Congress proposed and the States ratified the Twelfth Amendment with the understanding that electors are ministerial agents who represent their parties’ nominees, rather than platonic guardians who exercise independent judgment,” they wrote in the brief.
A system in which electors vote freely may have worked prior to the establishment of political parties, the Colorado GOP added, “but it broke down once electors came merely to represent their parties’ presidential and vice presidential nominees.”
Similarly, the party rejects electors’ reliance on a 1952 Supreme Court case, Ray v. Blair, which left open the question of whether electors may be forced to vote for a particular candidate, even as it said parties may administer oaths to electors in an attempt to ensure fealty.
Though Baca and Nemanich are leading a national effort to encourage Republican electors to reject Trump, the Colorado GOP also notes that they never, in their affidavits, promise that they themselves will violate Colorado’s law to oppose Clinton. And if they don’t guarantee that they will, they might lack standing to bring suit at all.
“Plaintiffs never say that they will not vote as required,” the party argues. “They allege that they ‘may vote’ for someone other than Clinton and Kaine.”
The suit is set to be heard in court Monday at 3 p.m. MT.