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- Can the Electoral College truly thwart Trump's reign?
On a recent Monday, Bob Nemanich sat in a red rocking chair on the front porch in his Middle Shooks Run neighborhood, contemplating the future of the republic and his role in it.
His house is a battleship gray bungalow on a busy tree-lined street where he lives with his wife Sue. A "W" banner representing the Chicago Cubs' World Series championship fluttered in the breeze. A man walked a dog down the sidewalk as the sun dipped behind the mountains and a skateboarder rolled by.
Nemanich's neighbors likely did not know that the 59-year-old Sierra High math teacher is one of 538 people from across the country who make up the Electoral College. They might not know he is engaged in a small revolt to try to stop Donald J. Trump from becoming president. They might not even know what the Electoral College is.
Nemanich's neighbors also might be unaware that he is one of two national electors suing the state of Colorado in an effort that could impact the way the Electoral College system works. The suit — which has hit a snag — seeks to declare unconstitutional Colorado's law binding electors to whomever won the state vote.
"I'm just an average schmuck," Nemanich chuckled in an interview before his Dec. 12 court date.
But not every average schmuck will be summoned to his or her state capitol on Monday, Dec. 19, to swear an oath and sign official paperwork as part of the formal process of awarding the presidency to Trump. The question is whether Nemanich or his fellow electors will uphold that duty.
Nemanich is part of a small movement among some national electors to see what — if anything — can be done to keep Trump from the Oval Office. He is one of nine Colorado electors who were selected during the Democratic Party's caucuses and assemblies in the spring. Colorado's electors are all Democrats since Hillary Clinton won the state.
Four out of the nine are on record saying they are considering a rebellion. They are Nemanich, former state Sen. Polly Baca, Jerad Sutton of Greeley (also a math teacher) and Micheal Baca, a 24-year-old grad student in Fort Collins who is not related to Polly Baca. Micheal Baca is one of 10 U.S. electors who have asked for intelligence briefings about Russian influence on the U.S. election before they have to cast their votes next Monday.
Their plan is this: Persuade enough fellow electors around the country to join them in rallying behind a Trump alternative. Because more national electors are Republicans, they assume the alternative would have to be Republican. And even as Democrats they are OK with that because they believe a mainstream Republican they might choose would be better than Trump.
But Colorado, like 28 other states, has a law requiring its electors to vote for the candidate who won the state — in this case Clinton.
The U.S. Supreme Court, however, has left open the question of whether it is constitutional to enforce those state laws, says Jason Wesoky, a Denver lawyer representing Nemanich and fellow elector Polly Baca, a former Democratic state senator.
"We believe it is not, under Article II and the 12th Amendment and how it is discussed by Hamilton in the federalist papers," Wesoky says.
Hence the lawsuit, which names Democratic Gov. John Hickenlooper, GOP Attorney General Cynthia Coffman and Secretary of State Wayne Williams as defendants. In response to the suit, Williams, an El Paso County Republican, used unusually harsh language, calling the lawsuit and the overall strategy "arrogant," "odious" and "evil." He said the court should reject what he called an "illegal conspiracy" and opined that the electors had succumbed to "intrigue and corruption."
- Allen Tian
- No 'average schmuck' at all, really.
Nemanich says his lawsuit is merely a first step, which, if successful, would give cover to the rest of the electors around the country to vote their conscience if they want to. But on Dec. 12, a federal judge denied a temporary restraining order and an injunction to stop Colorado from enforcing the law. "Part of me thinks this is really a political stunt," the judge said.
Wesoky has vowed to press on, perhaps asking for an emergency appeal to the 10th Circuit.
So far there are fewer than a dozen national electors nationwide on board with the plan, born out of Colorado, to try and derail Trump through the Electoral College. Eight are Democrats — four from Colorado, three from Washington state and one from California. A Republican elector in Texas is also on board.
Together they call themselves Hamilton Electors, a nod to Founding Father Alexander Hamilton who they believe viewed the Electoral College as a deliberative body created to stop someone unqualified from becoming president, not just act as a rubber stamp for whoever won their state.
Trump, Polly Baca says, is "not president-elect until the Electoral College meets. And as an elector I'm hopeful that we can come up with an alternative."
This movement, Nemanich acknowledges, is a longshot, but he is cautiously optimistic. Last weekend he spoke to a small group of fellow Democrats at Penrose Library, laying out his plan.
At the very least, he hopes public attention to this organized revolt, the first of its kind in history, could reform the Electoral College system and its 228-year history of how the United States elects its president.
The Electoral College is the reason a president can win the White House without winning the nation's popular vote. That happened in 2000 when Democrat Al Gore won more votes across the country, but Republican George W. Bush took the White House when the U.S. Supreme Court halted a recount in Florida, thus giving him more electoral votes.
This year, Clinton totaled 2.6 million-plus more votes nationally than Trump, but Trump took more projected votes in the Electoral College.
The framers of the U.S. Constitution set up this system as a check against direct democracy, which they did not trust. Because of it, each state is allotted a number of electors based on how many members of Congress the state has. In most states, the winner of the popular vote, no matter how slim the margin, takes all of that state's electoral votes. The nominee who reaches 270 or more Electoral College votes wins the presidency regardless of the popular vote.
When Nemanich first took on the job as a national elector, he assumed a Democrat would win the presidency and he would, at most, see his name preserved forever in the National Archives as a member of the Electoral College.
"The next morning, after the election, I realized ... that this was not going to be a ceremonial situation," he said.
In a courthouse elevator on Dec. 12 following his first hearing, Nemanich said he had been subpoenaed in a related state court case the next day, brought by the secretary of state.
The aim of that hearing was to clarify what will happen to these self-styled Hamilton Electors if they do decide to try and cast a vote for someone other than Clinton. Doing so would be a misdemeanor — "the hammer of state government," his lawyer Wesoky said.
Asked what his clients might do on Dec. 19 at noon, Wesoky said they still plan to vote their consciences — even if that means leaving the state Capitol in handcuffs.
Reporting from this story originally appeared in The Colorado Independent.