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Colorado appeals election law ruling to US Supreme Court

Posted at 10:37 PM, Oct 16, 2019
and last updated 2019-10-17 16:26:08-04

COLORADO SPRINGS — The State of Colorado is seeking clarity from the U.S. Supreme Court on the constitutionality of its election laws.

At a press conference Wednesday, Secretary of State Jena Griswold announced her office is appealing a federal appeals court ruling that called Colorado's presidential elector laws unconstitutional. She was joined by Attorney General Phil Weiser.

"This decision cannot stand. The foundation of our nation is at risk, and we will vigorously appeal this decision to the U.S. Supreme Court," Griswold said.

If accepted, the Supreme Court would hear arguments next spring with hopes of delivering a ruling by June 2020. Both sides want the case to be heard as soon as possible, as it could impact the 2020 presidential election.

The legal battle stems from an incident following the 2016 election. Hillary Clinton won Colorado with 48 percent of the popular vote, edging now-President Trump by 5 percent.

Colorado law requires state political parties each nominate nine electors, who then cast their vote for the winning candidate based on the popular vote. For example, when Clinton won Colorado in 2016, the Democrats' electors were invited to Gov. John Hickenlooper's office to cast the vote.

In addition, the electors are required to vote for the winner of the state's popular election.

In 2016, three of the state's Democratic Party electors, including one from Colorado Springs, tried voting for John Kasich instead. The move was part of a national movement to keep Trump from securing the 270 electoral college votes needed to win the presidency.

Wayne Williams was Secretary of State at the time.

"I've generally, as a Republican, not pushed someone to vote for a Democrat. But in this case, the law says they needed to," Williams said. "When someone tried casting a ballot against the will of the people of Colorado, we said, 'That's not allowed under Colorado law', and so we'll find another elector who will."

Eventually, the three rogue electors were dwindled down to one, Michael Baca of Denver. Williams, after consulting help from the state courts, then replaced Baca with another Democrat who would vote for Clinton.

That action launched a legal battle. Previously, a pair of state courts ruled in favor of the state, saying they were carrying out the law.

But in August, the Tenth Circuit U.S. Court of Appeals reversed the district court ruling. Judge Carolyn Baldwin McHugh called Williams's actions unconstitutional in a 100-plus page opinion.

"Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector. Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote binding provision in § 1-4-304(5)," McHugh said.

Proponents said the law protects the popular vote, ensuring every vote is heard.

Meanwhile, opponents like Robert Nemanich, one of Colorado's so-called "faithless electors" in 2016, said the electoral college is broken.

"We give this illusion that the popular vote, your vote, counts. Well if it did, what happened to those 3 million people who voted for Clinton over Trump," Nemanich said.

Nemanich, who eventually changed his vote from Kasich to Clinton, said he hopes their attempt at proving the electoral college is a flawed system could help rewrite the way Americans vote in the future.

"Presidential electors have a federal function. That means the state cannot tell them what to do. They can choose, but they can't tell them what to do," Nemanich said.