Posted 2:30 p.m. | Updated 9:00 p.m.
A Denver judge has ruled that Electoral College members in Colorado are required to cast their ballots for the state’s popular vote winner -- in this case Hillary Clinton. If they do not comply, they can be removed and replaced.
The decision comes after Monday ruling, in which a federal judge denied a request from two of Colorado’s presidential electors to be freed from a state law that requires them to vote for Clinton.
The so-called Hamilton Electors, Polly Baca and Robert Nemanich, are part of a national movement to try and head off Donald Trump’s anticipated victory when the Electoral College meets next Monday. Their goal is to form a national coalition of Republican and Democratic electors, who would vote for a compromise candidate and deny Trump the presidency.
Nothing in the U.S. Constitution or in Federal law dictates how electors have to vote. But in Colorado and 28 other states, there are laws that punish “faithless electors.” Section 1-4-304 of the Colorado Revised Statutes reads: “Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice presidential candidate who received the highest number of votes at the preceding general election in this state.”
With Tuesday's ruling, it’s no longer ambiguous as to what will happen if a Colorado elector chooses not to cast his or her ballot for the Colorado victor -- Clinton.
Denver District Judge Elizabeth Starrs ruled that an elector going against state law, and either not voting or voting for a person other than the candidate who won the state, is a "refusal to act," and the state has a right to remove the elector before they are able to go against their oath.
There was the possibility of faithless electors being charged with a misdemeanor, and facing a fine or jail time.
“If the state Supreme Court affirms Judge Starrs ruling today, the votes of Colorado will be locked in to Hillary Clinton and will not be able to go to a compromise candidate,” said Jesse Witt, the lawyer that represented Baca and Nemanich. “But we’re hoping that electors in other states are watching, because in many states they do have a choice.”
“We’ve now had both federal and state rulings that have held that, ultimately it’s the people’s decision that makes the difference here in Colorado,” said Secretary of State Wayne Williams. “And the people’s right to vote is paramount, and that overrides any individual electors feelings about a particular vote.”
An appeal has been filed, but it remains unclear if the Court of Appeals will hear it before Dec. 19 when the state’s electors will meet and vote. Regardless of the outcome there, Micheal Baca of Denver, one of the Hamilton Electors, has pledged to still vote for a Trump alternative, not for Clinton, the candidate who won Colorado.
Starrs said that if the electors violate their oath, there would be legal repercussions, but Baca, speaking before the judge ruled, said he was willing to take his chances.
“I believe in my interpretation of the 12th Amendment. And when I'm performing my role as a member of the Electoral College, I'm selecting a president that's to represent all people in this state,” Baca said. “I believe by compromising on a responsible Republican, that provides a better deal for my constituents of Congressional District 1.”
“I believe it's a small law. But yes, I am willing to break that law."
Not all of Colorado’s electors are on board with the plan. Outgoing state Sen. Rollie Heath is also a member of the Electoral College, but he does not consider himself a Hamilton Elector. Speaking to Colorado Matters before the judge ruled, he did say that while he was “highly sympathetic” to what they are trying to do, he is still “committed to vote for [Hillary Clinton] and I'm proud to do so.”
As a state senator, Heath has heard from his constituents in Boulder, both about their concerns with a Trump presidency and about the Electoral College. Many of them “want us to go to a popular vote and basically do away with Electoral College completely,” he said.
“Of course the whole reason for the Electoral College is the small states wanted a voice, and if we went to a majority vote, they would lose out to the New York's and California's and East and West Coasts,” Heath said.
Colorado went blue in 2016 and some wonder why the electors are taking away the state's vote for Clinton. Baca, for his part, understands that this could be potentially taking away the voice of the people, but following the popular vote isn’t “going to do anything to stop Donald Trump.”
“If you believe Donald Trump is a clear and present danger to the fabric of our Republic, then get behind what we're doing with the Hamilton Electors,” Baca said. “Yes, it's a long shot. It's difficult.”
Interview Highlights With Baca And Heath (Before The Ruling)
On taking the ‘Hamilton Electors’ name:
Baca: “We take a lot of the information from the Federalist 68 and describing the Federalist Papers that Hamilton wrote, or in part wrote. Initially we were called the Moral Electors, but we reran it and went to the Hamilton Electors to be a little more direct. Because this is about the Founding Fathers and we believe that we are a safety net to prevent someone dangerously unfit from taking office.”
On the approaching deadline and long-shot chance of victory:
Baca: “Of course it's an uphill battle. We're doing something that has never been done, but signing the Constitution of the United States had never been done. Putting a man on the moon had never been done. Just because it hasn't been done before doesn't mean it's not possible. And I believe through a message of unification and Americans putting their country above their party that this is quite possible. Six days is a lot of time.”
On why the compromise candidate needs to be a Republican, not Clinton:
Baca: “Thirty-seven Republicans will not vote for any Democrat, much less Hillary Clinton, in such a divisive campaign. The only way this works is if we get these supporters to back a responsible Republican, and that is the way we stop Donald Trump.”
Heath: “I think he's right in terms of not getting any Republicans to vote for Secretary Clinton. I think that's correct. In terms of, you'd have to get, well, you'd have to get all of the Democratic electors to vote for whomever this Republican candidate is, and without anyone knowing, I think that is highly unlikely.”
On some electors demanding to see intelligence on Russia’s role in the election:
Heath: “This aspect of this election is scary. The things that I've learned, that the intelligence, the Russians actually reached down into some of our counties as well, if you believe and if that is credible, and a number of county chairs have talked about that to me. So I think there is a huge concern there. Yes, but I think this has got to come out for the American public, not just for us.”
Read the full transcript of the Heath-Baca interview:
Ryan Warner: This is Colorado Matters from CPR News, I'm Ryan Warner. They are trying to change the course of history but they're running out of time. The Hamilton Electors hope to stop Donald Trump from becoming president through the electoral college. Several of these electors are here in Colorado and they'd normally cast their ballots for Hillary Clinton, since she won the state, instead they want to throw their support behind a republican alternative to Trump. Their effort took a hit in court Monday, a judge's ruling means they must follow state law and vote for Clinton. Micheal Baca of Denver is a Hamilton Elector and one of the national leaders of the effort to keep Trump from winning the electoral college, and outgoing state senator Rollie Heath is also a member of the electoral college but he does not consider himself a Hamilton Elector. Gentlemen, thanks for being with us.
Micheal, state law says each political party must choose members of the electoral college because Clinton won in Colorado, the Republicans sit this one out here and the nine democratic electors vote. By state law they must vote for Clinton. As we mentioned, two Colorado electors sued to overturn that in hopes they could vote for a compromise Republican candidate, you supported that lawsuit, the judge ruled against you. What happens next, Micheal?
Micheal Baca: Well, one thing I want to note is that they're private parties selected us as private people. I was voted on by the people of Congressional District 1, and so I believe in my interpretation of the Twelfth Amendment, and when I'm performing my role as a member of the electoral college, I'm selecting a president that's to represent all people in this state. I believe by compromising on a responsible Republican, that provides a better deal for my constituents of Congressional District 1.
RW: Okay, you may believe that, but the law says otherwise. How do you proceed given the judge's ruling?
MB: I will be voting for a Republican for President of the United States of America.
RW: It's a misdemeanor. Are you willing to break the law to do so?
MB: I believe it's a small law, but yes, I am willing to break that law.
RW: That assumes that you remain seated as an elector. The Colorado Secretary of State is seeking clarity in court today to see whether he has the power to remove you or whether the party does. What is your understanding about that?
MB: I've been very clear since November 9th, since founding this movement or co-founding this movement, and proceeding forward. And so it's been no secret and yet the Secretary of State still confirmed me, just last week, to be a presidential elector, and they had the information out in public, so I do fully intend to be able to act and cast my ballot for President and Vice President of the United States.
RW: The Secretary of State, who has called this an arrogant attempt by two faithless electors to elevate their personal desires over the entire will of the people of Colorado, and the judge yesterday calling this a political stunt. What do you think?
MB: I think that we're being faithful to the Constitution. I believe that we are acting in the best interest of Americans to prevent a demagogue from taking office.
RW: You believe that Trump is a demagogue? What makes you say that?
MB: The fact that he doesn't want to listen to the, he disregards the media, he is disregarding the Central Intelligence Agency. When he sends a tweet and his followers go after people, I think that presents a danger. When you have Russian influence in our election and he continually denies that information, I believe at the very least we need to have all information available to us.
RW: Will you appeal yesterday's ruling?
MB: I have yet to speak with, I wasn't a plaintiff on that lawsuit-
RW: That's right.
MB: So I don't want to speak for Mr. Wesoky but I would hope that he does appeal it, yes.
RW: All right, let me say that the parties, the two electors who are in that suit are Robert Nemanich of Colorado Springs and long-time Democratic activist from Denver, Polly Baca, who's not related to you, but you're certainly sympathetic to the suit. Explain why you're called Hamilton Electors, will you?
MB: We take a lot of the information from the Federalist 68 and describing the-
RW: The Federalist Papers.
MB: Federalist Papers that Hamilton wrote, or in part wrote. Initially we were called the Moral Electors, but we reran it and went to the Hamilton Electors to be a little more direct because this is about the Founding Fathers and we believe that we are a safety net to prevent someone dangerously unfit from taking office.
RW: Is this a quixotic adventure given how little time there is? Monday is when these electors, including yourself, have to cast their ballots, and given the fact that you would presumably have to replicate this in many states, this strikes me as an uphill battle. What do you say?
MB: Of course it's an uphill battle. We're doing something that has never been done, but signing the Constitution of the United States had never been done. Putting a man on the moon had never been done. Just because it hasn't been done before doesn't mean it's not possible, and I believe through a message of unification and Americans putting their country above their party that this is quite possible. Six days is a lot of time.
Ryan: Micheal Baca, I have a lot more to ask you, but I want to bring in Rollie Heath, who is not a Hamilton Elector. Rollie, you're scheduled to cast your electoral vote Monday. Whom will you vote for?
Rollie Heath: Good morning Ryan. Thanks for having me.
RH: Certainly barring some unforeseen incidences, let me just say, I'm highly sympathetic to what Micheal's doing. I am as concerned as he is about a Trump presidency, and all of the factors that he listed certainly concern me. My emails have been lit up, both from the standpoint of me being an elector and also being a state senator. I've been getting a lot of push back from people. I'm going to be voting for Hillary as it stands right now. The system, I view, I got elected at the state assembly, and we ran, I ran not as Rollie Heath, but I ran as a supporter of Hillary Clinton, which basically did not allow people that are supporting me to think that I would do anything else. So I think we're in an awkward situation from all standpoints, personally as well as professionally. If the court had gone the other way yesterday and had freed me up to be an uncommitted delegate, then I think that it changes quite a bit, but at this point, I feel that I was, the people supported me, not as Rollie Heath but as an elector of Hillary Clinton, that I'm committed to vote for her and I'm proud to do so.
Ryan: You say that you are sympathetic to Micheal Baca's cause and to those of the Hamilton electors. What do you think of those who call this a political stunt?
RH: I would disagree with that. I think there is a great deal of concern. Certainly my constituents that I represent in Boulder, there's a huge concern. I can't go anywhere with this topic that comes up and what this means for the future. From that standpoint, I am deeply concerned.
RW: You said that you got emails and people were contacting you both as a state law maker and as an elector. Can you tell us some of what you've heard?
RH: A large number of those, I would say the overwhelming majority, were that they want us to go to a popular vote and basically do away with electoral college completely. As you know, Hillary Clinton won, Secretary Clinton won, the popular vote by over, I think it's over, two million now. This is the second time this has happened in recent history with Al Gore's election.
RW: Democrats seem to be on the losing end when it happens, yes?
RH: Yeah, so I think there's a lot of people that feel we ought to go straight to that. Of course the whole reason for the electoral college is the small states wanted a voice, and if we went to a majority vote, they would lose out to the New Yorks and Californias and east and west coasts, and that's why we have the electoral college and not a popular vote. So I don't think that would change and I think the chances of us going to a majority vote are pretty slim for that very reason that the small states won when this was all drafted these many years ago.
RW: I want to get to some of the finer points of how this movement would work. Micheal Baca, you want to throw your support behind a compromise Republican candidate. Do you have one?
MB: We don't have anyone out in public that has been public supported yet. We do believe that there's a reluctant leader out there, much like George Washington, our first president, who didn't want to become the president and was called upon and people, the only unanimous vote in the electoral college, or what it was at the time, voted for him and called him down from Mount Vernon. I think there's only one pragmatic approach to doing this is that Democrats, we must admit defeat, but we can still stop Donald Trump, which is the ultimate goal.
RW: It sounds like the philosophy behind supporting an alternative republican candidate is that you do want to honor what the electoral vote was, just not through Donald Trump. Would you say that's the case?
MB: Yes. I absolutely do believe that and I don't think, I disagree a little bit with Senator Heath, fully respectfully, in that I understand that the small states need to have the power as well, but Wyoming has, their electoral votes is worth 362% more than a California electoral vote. There's still this balance of power issue and we live in a society that is collapsed by geography with technology.
RW: Now, I know the name of John Kasich of Ohio has been floated as a potential Republican alternative to Trump. Although, he, I think, has tweeted that he's really not interested. So you've got until Monday and you haven't been able to name who the Republican alternative would be. Does that just add to the fact that this is next to impossible, if not impossible?
MB: Of course it's difficult. If something is going to be easy, it's probably not worth doing. I believe that over these next six days, potentially someone could step up. If not, then it's going to be left up to December 19th, and I hope that Republicans across the country, because it's not about the Democrats here, it's about Republicans, 37 Republicans.
RW: That is to say, you could go into the day of casting the ballot for the electors without a candidate?
MB: Yeah, without knowing. Then it would be left, 37 fractured and they voted for whoever it was, then the top three candidates would then go to the House of Representatives if Donald Trump got below 270 votes.
RW: Okay. There's another effort to redirect the electoral college, a change.org petition signed by almost 5 million people calls on electors to vote for anyone they want and choose Secretary Clinton because President-elect Trump is, quoting here, "Unfit to serve." How does your campaign fit in with the idea of trying to throw the electoral college for Hillary Clinton, which is another democratic movement?
MB: I don't think that is at all conceivable to happen. Thirty-seven Republicans will not vote for any Democrat, much less Hillary Clinton, in such a divisive campaign. The only way this works is if we get these supporters to back a responsible Republican, and that is the way we stop Donald Trump.
RW: What do you think about that, Rollie Heath?
RH: Well, I think he's right in terms of not getting any Republicans to vote for Secretary Clinton. I think that's correct. In terms of, you'd have to get, well, you'd have to get all of the Democratic electors to vote for whomever this Republican candidate is, and without anyone knowing, I think that is highly unlikely. I'm certainly not going to vote for a pig in the poke and not even have any idea. Particularly, with the court cases, I just don't think you're going to get all of the Democratic electors across the country to do it. If we had a candidate and we knew what this was all about and, obviously you can have a dialogue around that, that would be kind of... I still don't think likely, but at least you have something to go on. The unknown, I think, makes it virtually impossible.
RW: Micheal, a woman named Courtney Beth Keller, who lives in Loveland, reached out to us on Twitter this morning and she has this question, "Why are our electors taking away our state's vote for Hillary Clinton? Our state went blue. Fight for Hillary." Taking some flack here from the left. What's your response to Courtney?
MB: I could vote for Hillary Clinton and that's not going to do anything to stop Donald Trump. If you believe Donald Trump is a clear and present danger to the fabric of our republic, then get behind what we're doing with the Hamilton Electors. Yes, it's a long shot. It's difficult, I understand. I understand that we are potentially taking away the voices of people and that is a concern, but we have the electoral college and Hillary Clinton did win the popular vote. Donald Trump won the electoral college vote, so we must respect that vote because that is the current law of the land.
RW: Briefly, before we go, Rollie Heath, there's been a movement among electors to see some of the intelligence related to Russia's role in the election. Is that something you'd like to see before you cast your ballot on Monday?
RH: Absolutely. This aspect of this election is scary. The things that I've learned, that the intelligence, the Russians actually reached down into some of our counties as well, if you believe and if that is credible, and a number of county chairs have talked about that to me, so I think there is a huge concern there. Yes, but I think this has got to come out for the American public, not just for us. What this could mean down the road. So yes, I think it would be very, very helpful. Does it change anything? Maybe not but I think it's a huge matter of concern and yes I would support it.
RW: That is Rollie Heath, member of the Electoral College from Boulder and we heard from Micheal Baca who is a Hamilton Elector from Denver. Still to come, the man who 'thought' he owned water. This is Colorado Matter from CPR News.
CPR Reporter Michael Sakas contributed to this report.