A state court ruled on Dec. 13 that Colorado's nine presidential electors must vote for the winner of the popular vote in Colorado, Hillary Clinton. The court also said if a presidential elector fails to vote for Clinton, that elector would be removed and replaced.
"Ultimately we're a nation of laws and so we need to have the ability to make decisions, and people need to know their vote is going to count," said Republican Secretary of State Wayne Williams.
Williams asked the court for clarification on the issue. While Colorado law already binds electors to the popular vote winner, some electors said they wouldn't "rubber stamp" a vote for Clinton. Williams said he wasn't sure if an elector who refused to vote for Clinton could then be replaced, or if their electoral votes wouldn't count.
"It is possible that Colorado may not have been [able] to cast all of its electoral votes," said Williams.
Two Democratic members of Colorado's Electoral College, former state Sen. Polly Baca, and Colorado Springs math teacher Robert Nemanich, filed a federal lawsuit challenging the state's Electoral College binding laws. The suit is part of a national movement to undermine similar laws in other states and free up electors in red states to vote against Trump. Their attorney, Jesse Witt, argued that regardless of the state law, Colorado's presidential electors should be able to vote their conscience.
"Certainly one of the defenses that would be raised is their conduct is constitutionally protected free speech," said Witt.
He also argued in Denver District Court that the state court could not rule on the issue because an elector is performing a federal duty, not a state duty. Judge Elizabeth Starrs was not persuaded. She said presidential electors are acting in an official state capacity giving state courts jurisdiction over the matter.
The electoral college vote will take place on Monday, Dec. 19 at the state capitol. Should any elector fail to back Clinton, and violate the state law and judge's order, the Democratic Party would nominate a new presidential elector. It's also a misdemeanor, and could be punishable under law.
The decision from the court follows a federal judge's ruling against Baca and Nemanich in their efforts to immediately prevent the state's electoral college binding law from taking effect.
Capitol Coverage is a collaborative public policy reporting project, providing news and analysis to communities across Colorado for more than a decade. Fifteen public radio stations participate in Capitol Coverage from throughout Colorado.
You are one of the KRCC readers who wants to know what is really going on in Southern Colorado these days. We have got just the thing for people like you: the KRCC Weekly Digest. Sign up here and we will see you in your email inbox soon!