NY Times in their Sunday edition article about the Electoral College explored faithless electors, our opposition to the entire electoral institution. Once known as Hamilton Elector and subsequently a plaintiff of linked cases regarding faithless electors where we eventually made it to the Supreme Court of the U.S. in cases known as, PETER B. CHIAFALO, LEVI JENNET GUERRA, AND ESTHER VIRGINIA JOHN, PETITIONERS v. WASHINGTON (Chiafalo et all v Washington for short) and our case known as COLORADO DEPARTMENT OF STATE, v.MICHEAL BACA, POLLY BACA, AND ROBERT NEMANICH. Those cases were heard by the Court last May. We lost 9-0 as the Court affirmed the absolute protection of the People’s Will in the state by state contests for president and vice president stating that the electors had to follow the state law. In the New York Times article:
“Mr. Nemanich said that while he didn’t like having lost at the time, in retrospect he was glad that he did given Mr. Trump’s attempts to gain more electoral votes and stay in office.
“The court was exceptionally wise, they blocked Trump from manipulating the Electoral College by saying faithless electors were no longer lawful,” he said.
Mr. Nemanich says that he’s still bothered by the power that the Electoral College has and that he didn’t vote his conscience that day.
We all are seeing how important democracy is to our society and our nation, although some don't like the outcome of the "People's Will" as evidenced here with Proud Boys stabbing counter-protesters last night. Donald Trump’s campaign has turned to the courts in an attempt to swing the Electoral College. The Washington Post provides a condemning summary:
In a remarkable show of near-unanimity across the nation’s judiciary, at least 86 judges — ranging from jurists serving at the lowest levels of state court systems to members of the United States Supreme Court — rejected at least one post-election lawsuit filed by Trump or his supporters, a Washington Post review of court filings found.
The string of losses was punctuated Friday by the brief and blunt order of the Supreme Court, which dismissed an attempt by the state of Texas to thwart the electoral votes of four states that went for President-elect Joe Biden.
Mr. Trump then turned to the courts to swing the Electoral College his way, in five swing states (AZ, GA, NV, PA & WI). What only could be interpreted as Trump’s legal team led by Mr. Giuliani appeared to hope that a partisan judge or something would overturn the results in those handfuls of swing states allowing him to declare victor with 270 disputed electors or allow competing slates to be presented in Congress. In the NY Times article:
That has left electors like Ronda Vuillemont-Smith, a conservative Oklahoma activist who will cast her vote for Mr. Trump on Monday, believing the president will stay in office.
“I’m going to be quite honest with you, I think Donald Trump will be president for a second term,” she said, citing continued attempts to overturn the results.
This was something I was speaking about going back to November 2016 as few recognized the existential threat to our democracy and its constitutional republic. Now many political pundits and officials are harboring similar concerns. Steve Schmidt, co-founder of the Lincoln Project, a die-hard Republican and strategist stated on the Lawrence O’Donnell Show Thursday night:
So December 10th is a historical day, and sometimes in the instant analysis culture of fast-moving events, we can overstate, the importance of the event, and contest of the moment, to say that this is a meaningful event in history. You can say on this day that it was a meaningful event in American history. It was before and after a moment. 106 members of Congress broke faith with the American people they did something that the fascists, were not able to do, They forced of the majority of elected officials of the Federal House broke with the faith idea that the people of America are sovereign where one side is willing to lose an election to accept the results, to come back the next time in the competition of ideas so what we saw today the breaking of faith which followed the poisoning of faith in the American system, the American democratic-republic that has endured since 1776, it has poisoned this faith and belief in it. It is now the balance of our lives, the competition for America is now between the Democratic Party that believes in a democracy vs an autocratic party.
Now some piece of news not reported. I was told from constitutional scholars that our Supreme Court case(s) also was the legal reasoning that was in part of what convinced swing state legislators leaders that the courts would immediately intervene on this idea of "Faithless Legislatures" in trying to act on Trump's idea of overturning their state's voters. Established in July of this year the Supreme Court made the precedent that "Faithless" Electors in the 33 states and the District of Columbia where state law holds against faithless voting as affirming its unlawfulness. That ruling on its surface blocked Trump and his autocratic forces seeking to try to switch individual votes of Electors. But unseen is the concept of a "Faithless Legislature" which we now witnessed as another Trump attempt to overturn the election trying to get Republican legislatures to appoint their own slate of electors overturning their own state voters will. I was told that our case(s) also was the legal doctrine introduced to swing-state Republican legislators that the courts would immediately intervene on the idea of "Faithless Legislatures”. The same reasoning is that they could not just ex post facto change or ignore their own state laws once the election had begun as an individual electors. From the Court’s opinion in Chiafalo et all v Washington.
A View of the Constitution of the United States of America 57 (2d ed. 1829). Looking back at the close of the century, this Court had no doubt that Story's and Rawle's descriptions were right. The electors, the Court noted, were chosen "simply to register the will of the appointing power in respect of a particular candidate." McPherson, 146 U. S., at 36.[...] State election laws evolved to reinforce that development, ensuring that a State's electors would vote the same way as its citizens. As noted earlier, state legislatures early dropped out of the picture; by the mid-1800s, ordinary voters chose electors. State election laws evolved to reinforce that development, ensuring that a State's electors would vote the same way as its citizens. As noted earlier, state legislatures early dropped out of the picture; by the mid-1800s, ordinary voters chose electors.
Article II and the Twelfth Amendment give States broad power over electors and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years.[...] Among the devices, States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule. [emphsis added]
All this is based on the minutia of electoral procedure and law many of you have witnessed as each state certifies election results, some in hostile conditions. It all begins in the spring and summer months when political parties gather beginning the selection process of its party’s eventual electors. Then in early September, each state submits each political party's slate of potential electors to the National Archives attesting their certifications qualifications under each state’s election law. What that procedure does in effect is notify the voters within their respective states that the general election will determine each states’ appointed electors by the vote of THE PEOPLE to the Electoral College. It is at that point state legislatures lose their plenary power of appointment. Faithlessness violates this doctrine, of a voter’s right to be informed beforehand as to the consequence of the election. It is a basic DEMOCRACY doctrine.
Our case firmly established electors do not possess free will, only the people's vote does. This carries forth to state legislatures’ as well. Unless the legislature passes a law that is signed changing their law in a timely manner, as to how presidential electors are selected, they do not have ex post facto plenary power. Unstated throughout this entire process is the basis that it's the “We the People” who are sovereign, not the politicians or their political parties. Elected officials only serve in a temporary term. In short, then the people’s will determines the next temporary elected official. Therefore the doctrine of faithlessness carried to the state legislatures’ as well.
The courts, all the swing-state courts, and federal courts right up to the Supreme Court have all defended this basic principle of democracy. But apparently not 126 Congressional Republicans have forsaken this as signatories amicus to the Texas Supreme Court petition. They do not subscribe that a majority of votes rules. The Oklahoma elector attests to that as she clings to continued efforts to overturn the election.
What I learned first hand through this four-year journey is that resistance to tyranny and autocratic political forces works.
Maybe not the original intent, but it carries weight forward and pushes back the anti-democracy forces. That is the entire intent, protecting, and instituting democracy.
Steve Schmidt stated it emphatically holding that his former Republican Party must pay an annihilating and humiliating political price for breaking faith in our democratic process. This only can be done through the “People’s Will”. The courts might aid in unmasking these autocrats, holding them to the law but as long as the autocrats hold a political force relying on cult rightwing followers of Trump we face an existential threat to our republic.
The keystone of resistance is voting in a democracy. And the only weakness in all this is the Electoral College regardless of what will take place Monday at Noon across our fifty state capitols in the United States. Because even with Biden receiving more than 51% of the People’s Vote, over 7 million vote difference, and yet a turn of mere 44,000 votes in just three states was the difference in the Electoral College majority. Another Colorado Elector:
Mr. Kennedy plans to dutifully cast his vote on Monday for Mr. Biden. But for Mr. Kennedy, a former Marine who served in the Middle East, a question still looms large behind the task ahead of him: Is such a system really in keeping with the nation’s ideals?
“What’s terrifying is how close we came to another election of a president who won the Electoral College while losing the popular vote,” he said.
So the question is what are WE The People to do? How do we resist? Yes, it is discussed in the article is often referred National Popular Vote Interstate Compact, a state by state agreement to appoint electors who will vote for the winner of the national popular vote despite what occurs in their own state. At this point states like Colorado have joined together amassing 196 Electoral Votes within 15 states and the District of Columbia. Coincidentally all those states voted for Biden this year. Imagine what will happen if Wisconsin, Michigan, or Pennsylvania joined the compact when it had a temporary Democratic majority in its legislature only to have this great autocratic force fall upon them if and when the state voters for a Republican candidate but a Democrat won the national popular vote? It is not edged in constitutional stone as it must be we will see a huge controversy.
Like myself, my cohort, fellow litigant and former 2016 Colorado Elector, we both testified to Colorado’s legislature when the Compact law was being considered back in 2019. Yet both us remain quite skeptical, even as the Colorado voters approved the measure in first-ever state referendum was passed this year 52.3% to 47.7%. Polly Baca;
“We have to go much further than that,” she said, noting that the Electoral College was established by the Constitution and therefore hard to circumvent. “We have to amend the Constitution, and allow democracy to work, as we’ve told other democracies it should work.”
In 2016, Ms. Baca, who is also a former state legislator, got her biggest platform yet to make her stand on the Electoral College.
So there we have it. The only course of action is continued resistance with the ultimate goal for a constitutional amendment where a national vote elects the president. It removes all these Electoral College and state by state shenanigans and malfeasance because the Electoral College would no longer exist. Oh, there will be other attempts to manipulate the election for president is now about trying to manipulate almost 160 million voters. A constitutional amendment would also require the institution of the civil right to vote, “trumping” state and local interests from suppressing voters. Federal and state legislative bodies can change laws even a law like the National Compact as we continue to see again and again how strident autocrats are in seeking to win elections with minority numbers. Just look at the monumentous Civil Rights legislation of the 60s that targeted historically habitual voter rights violators of the Old South, where now it has been almost dismantled. With all the national news spotlights pointed at Georgia as the balance of political power is on the line it will be interesting to see autocratic efforts of voter suppression tactics.
So in the end, do you want the election of the president be the realm of partisan state legislatures, or the threat of it because we possess a state-by-state contest system and this antiquity electoral college system or an election of the president where all votes possess equal value and only the majority of the People’s Will determines the outcome? In the article I put it another way:
“Do we really want 538 Bob Nemanichs electing our president?” he asked.
This is revolutionary. It is democracy and it is how we balance our interests of this constitutional democratic republic, seeking a more perfect union. I end with a conversation with my 93 year-old father, a life-long Republican and former elected local official. He decries that if this came about the Republicans would never win the presidency? I retort are you saying the Grand Old Party of Lincoln, Theodore Roosevelt and Ronald Reagan needs a handicap? Are you attesting that you cannot compete for the majority in the marketplace of ideas? Or are you decrying another Republican narrative that you are victims of democracy after spending two generations suppressing democracy? A former lawyer had no retort.