I am one of the Electoral College Electors from Colorado. This is by virtue of Hillary Clinton prevailing in Colorado (moving me from a nominated certified Elector to “actual” Elector). Late last week I canvassed half my fellow CO Electors beginning with Micheal Baca, who is mentioned here in the Denver Post article: Colorado presidential elector seeks to block Donald Trump from White House, also talked to numerous political reporters both print and national on line media, (AKA; John Frank the author of the above article and Kyle Cheney from Politico, author of this article, Here are the people who will cast the formal vote for president next month, political science and presidential history university scholars, law school professors, political professionals, elected and government officials and I have come to this conclusion: INDEED THE ELECTORAL COLLEGE IS IN AN HISTORIC PLAY. Where this goes is speculation but sentiment is building that the Electors cannot sit by and be ceremonial.
This assertion is based on the above observations where each Elector I talked to is interested in participating in some form of action. This includes the majority being Hillary supporters and party regulars. The reporters and political persons all tell me they are hearing similar, consistent, sentiments across this country. The fact that this election cycle has consistently been unprecedented, and unpredictable, and as those who know math, and mathematical trends, know that trends continue until the something stops that trend line. So why would this election cycle stop being weird until it is constitutionally over? There is no reason, and why the framers put in the Electoral College in the constitution in the first place.
Something else that is apparent, is that National Electors who take action will have to choose between their party partisanship and finding a rational and responsible pathway to doing what is best for the nation in fulfilling their constitutional duties of protecting our constitutional form of government from excesses of democracy, (or corruption or election manipulation), and acting under circumstances favorable to deliberation. Previously, all predictions and expectations regarding this election’s outcome regarding the projection Electoral College were based on Electors being wholly partisan, and yet those are not the sentiments being expressed from my fellow Colorado’s Electors. Nor are they what I am being told are sentiments by some or at least a few Republican Electors either.
So where is this leading us over the next 30 days to December 19, 2016, which is Electoral College Day? The first order, of business is to seek to unshackle our political enslavement restricting Elector’s voting privileges in 29 states that possess state laws from Electors voting their conscience. Those laws are unconstitutional. Those laws attempt to prescribe a voting enslavement of Elector’s through various methods of coercion, (fines, threat of criminal prosecution, expulsion or replacement), reflecting only the popular vote in their respective states, as only vote can be made. Seemingly, this appears to be justified with good intentions to enfranchise the ordinary citizen’s popular vote and yet, these laws are in direct conflict with the constitution as to the purpose and intent of the Electoral College and the jurisdiction that the Federal government possessing supremacy through the Supremacy Clause in the Constitution. Article Six in the US Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States
In 1952, in a US Supreme Court Case No. 649 Ray vs Blair the court ruled that Elector’s indeed possess the right and duty of expressing free will where the Supreme Court upheld a pledge requirement for candidates running for the position of elector.
A state’s or a political party’s exclusion of candidates from a party primary because they will not pledge to support the party’s nominees is a method of securing party candidates in the general election, pledged to the philosophy and leadership of that party. It is an exercise of the state’s right to appoint electors in such manner, subject to possible constitutional limitations as it may choose...... that the holding in Ray applied only to an elector’s name being placed on a ballot for a primary election.
Justice Reed wrote just a few paragraphs later that even if such pledges could not be constitutionally enforced regarding the elector’s actual Electoral College vote after the general election, that did not imply eliciting the pledge as a condition for a party selecting an elector was also unconstitutional.
No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the best men qualified to the Nation’s highest offices.* (Citing Federalist Paper #68.) Certainly under that plan no state law can control the elector in the performance of his Federal duty, say more than it could a United States Senator chosen by and represents its State.
And yet the press and media continue to try to promote the idea stating almost in every article that at least 29 states do not allow Electors to exercise their independent and non partisan judgment. Interestingly, Justice Reed cited Federalist Papers 68, page 441-442 in his footnotes which appears to directly correlate to 2016’s election cycle:
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
This is our duty as Electors in 2016 we must affirm our right to vote our conscience. And my canvass of fellow Colorado Electors appears to confirm that we understand that we have much more than a ceremonial function but a duty to this complicated investigation. Yet still state’s continue to enslave their Elector’s votes. From the Denver Post article:
There’s no federal law requiring electors to vote for the party that nominated them, but 29 states and Washington, D.C., have laws that attempt to force presidential electors to vote with the will of their state’s voters, according to the National Conference of State Legislatures.
Some states impose fines. Others, like Colorado, don’t allow for so-called “faithless electors.” If an elector does not cast a vote for the right candidate, they are removed and replaced with a new elector, according to the Colorado secretary of state’s office. So Baca is required under Colorado law to cast his vote for Clinton because she won the state’s nine electoral votes.
Specifically the State Law that is being cited is 1-4-304. Presidential electors.
(1) The presidential electors shall convene at the capital of the state, in the office of the governor at the capitol building, on the first Monday after the second Wednesday in the first December following their election at the hour of 12 noon and take the oath required by law for presidential electors. If any vacancy occurs in the office of a presidential elector because of death, refusal to act, absence, or other cause, the presidential electors present shall immediately proceed to fill the vacancy in the electoral college. When all vacancies have -111- Colorado Revised Statutes 2016 been filled, the presidential electors shall proceed to perform the duties required of them by the constitution and laws of the United States. The vote for president and vice president shall be taken by open ballot.
(2) The secretary of state shall give notice in writing to each of the presidential electors of the time and place of the meeting at least ten days prior to the meeting. (3) The secretary of state shall provide the presidential electors with the necessary blanks, forms, certificates, or other papers or documents required to enable them to properly perform their duties. (4) If desired, the presidential electors may have the advice of the attorney general of the state in regard to their official duties. (5) 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. [emphasis added]
I contacted CO’s Secretary of State’s office and asked for clarification as to how and by whose authority they could remove an Elector that is constitutionally afforded the “implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the best men qualified to the Nation’s highest offices” . I received the subsequent email that I requested in writing their position. First, I was told that since the vote is made in public and that once found that I failed to follow state law the Secretary of State would immediately vacate the vote and call for an immediate replacement. I inquired by what statutory authority is the Secretary of State claiming this power and their response was by [assumed] executive authority they deemed to possess as to enforce the state law. When I replied whether they had received this legal claim of authority from the AG’s office he stated they had not and it was the sole interpretation of the Head of Elections and Secretary of State. When I brought up Ray vs Blair and subsequent Term Limits Inc vs Thorton (I will go into this later), he maintained that they believe they are within their powers. I received this email as followup.
Per our conversation this afternoon, I am writing to let you know what the Colorado State Department’s interpretation and action would be regarding a faithless presidential elector.
1-4-304 (5), C.R.S., states that presidential electors shall (must) vote for the presidential/vice-presidential ticket that receives the most votes in the state. Thus, if an elector failed to follow this requirement, our office would likely remove the elector and seat a replacement elector until all nine electoral votes were cast for the winning candidates.
However, this event does not have precedent in Colorado. Thus, we would likely seek the opinion of the state attorney general’s office if this occurred.
Ballot Access Manager
Colorado State Department
I couldn’t help notice that he added (must) which is not in the law in the quoting of the law, but also backtracked, stating that there is no precedent in Colorado, nor the seeking of the AG’s office, whom I coincidentally, had already sought their advice and counsel on the matter, (they haven’t replied, outside acknowledging my inquiry).
Now, the last citing that Electors possess same free will as U.S. Senators in the exercise of their duties in office, I cite Term Limits Inc. vs Thorton where in that case the Supreme Court struck down an Arkansas law placing term limits on congressional candidates in their state. Here the Court developed several lines of argument to support its decision, most narrowly that the Constitution itself specified the qualifications for being a U.S. House member or U.S. Senator (Art. 1, sec. 2, cl. 2, and Art. 1, sec 3, cl. 3, respectively), and states (nor Congress for that matter) couldn’t impose additional qualifications for those offices. [emphasis added]. These grounds go to the Electoral College Electors as well. As with House members and senators, Article II expressly states qualifications for being an elector, to wit, “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” This militates against a broad reading of the Court’s interpretation of the “manner” provision in Article II in Ray vs Blair to include substantive requirements beyond merely specifying a process to select electors. Additionally, the Constitution itself also expressly identifies whom electors cannot vote for. According to the Twelfth Amendment, electors cannot vote for a presidential candidate from their own state if they vote for a vice-presidential candidate from their own state (and vice versa).
To conclude, my assertion that the Electoral College is in play a necessary requirement is for the Electors to freely exercise their duties without any enslavement of their vote by state laws. Electors across the nation must be informed that they have free will and that action must be put in play to strike down these laws immediately in the Federal Courts.
I would welcome my name be placed on a Federal suit, though as an ordinary citizen I have no funds for this and would require pro bono representation in Federal Court.
So what does Electoral College in play look like? There are three possible scenarios I mapped out.
- The most highly likely plausible outcome: Trump sustains a majority of Republican Electors even though there are a handful of defections he is elected President by the Electoral College, this result is immaterial of any faithless activity made by Democratic Electors. We make noise and begin to unravel the Electoral College but little or nothing is done.
- Trump does not sustain a 270 vote majority and he and Hillary’s candidacy (and up to one other possible third candidate), goes to the House of Representatives with following the procedures according to the Twelfth Amendment.
The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
Simple math would predict that in the House of Representatives Trump probably would more than likely be affirmed and elected President.
- A third and least likely outcome (Hail Mary pass or the Chicago Cubs winning the World Series), is the Electoral College itself elects a President and Vice President other than Trump or Hillary, (and subsequent a different Vice President) where a majority of Electors from the ranks of Republicans and Democratic Electors bolted from their enslaved partisan requirements, drafting two new persons to form a coalition government. Some have said this is a Colorado cannabis inspired pipe dream and they could be right, but, I dare say, this is the charge that Alexander Hamilton envisioned in 1788. For this to happen I figure at least 50 or so, Republicans would have to join 220 Democrats to individually vote in each of their respective state capitol, a new presidential slate. The Executive Director of the Democratic Party stated this is a highly unlikely scenario. She then said whom am I thinking? My reply was a candidate that either 220 Democrats could vote for who also is a person Republican, that 50 GOP electors would support, or a Democrat, that 50 Republicans would support that Democrats would also agree to or an Independent that again both sides would agree upon, along with a corresponding Vice President, most likely someone from the opposite party from the President. All decided in less than 30 days.
It would be a national drafting of a leader where instead of the President calling on someone to serve the nation, the nation would be calling on two individuals to bury their respective partisan hatchets and faithfully serve the nation.
Therefore, it is my contention that my fellow 537 National Electors have a great historic burden facing our ordinary lives. This burden is unfair, unexpected, unprecedented, and not welcomed in the least. None of us sought this great responsibility when we naively sought our previously ceremonial Federal office for one day. I was elected at my Congressional District Assembly as part of the caucus system where as Bernie delegate, even though I was a party insider/volunteer this being an aberration to the regular party’s leadership that lock step supported Hillary I knew that 64% of the 316 delegates in that CD Assembly room were Berniacs and I had a fair shot at this office. When I was elected, all I dreamed of was that on some December day if a Democrat (Bernie or Hillary) prevailed in Colorado, I would go through the pomp and circumstance of officially voting for the President. That is now all a child’s dream, this could be a nightmare where I now have to step up and try to help bring this remote group of electors to be responsible for the nation, not blindly partisan.
So what to do in the meantime? First order of business is to affirm our duty and right to vote our conscience. Second order is to begin the discussion of who might be a new coalition drafted presidential slate. Third order is to reach out to Republicans who have deep reservations or a revulsion to a Trump presidency and seek a coalition despite the partisan immense pressures.
I welcome the direct contact of any other National Delegates from either partisan stature, plus the responsible reach out from constitutional scholars, legal providers and political coalition builders. All others need not waste our time. And please stop emailing Republican electors like mentioned here in Tennessee, Tennessee's Electoral College members 'harassed' by anti-Trump emails
Tennessee's Electoral College members say they're being harassed by opponents of President-elect Donald Trump who have inundated them with hundreds of emails and phone calls asking them to change their electoral vote.
Several members of Tennessee's Electoral College delegation told The Tennessean this week they've received as many as 200 emails per day and a handful of phone calls. Electors in other states told the Tennessean they too have received similar barrages of email.
Emails don’t persuade, they are simply harassing spam.
Never in my wildest dreams did I think my dyslexic drivel would be shared over 1000 times, recommended over 300 times and commented by 600 postings. Thank you. For many of you or most of you your comments have echoed much of the thoughts of those I have talked to since Nov 9th. Just let me be clear about one thing, whatever I do is under the principle of what is best for the nation and constitution, no party or candidate trumps that. Interesting the poll is 60%+ to act on conscience though. Thank you