As one of nine members of Colorado’s electoral college, it is Bob Nemanich’s duty to ensure, as Hamilton wrote in his Federalist Papers, “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” “The person who has been declared by unofficial authorities as the President elect is unfit, immoral, and unethical,” said Nemanich in reference to Donald Trump.
In Colorado and 28 other states, there are laws prohibiting electors like Nemanich from voting against the popular vote in their state. That means every Colorado elector including him are required to write in Hillary Clinton on their ballots, and those in states where Trump won the popular vote are required to write in Trump. “The secretary of state told me if it’s deemed that I did not vote for the right person, my vote would be vacated and I would be immediately removed,” said Nemanich.
Assuming those laws hold, Trump will likely win 306 electoral votes, ensuring him the presidency.
Nemanich, however, has an alternate course of action. He is working with Republican and Democratic electors from every one of the 29 states with laws like Colorado’s in a group now dubbed the “Hamilton electors.” With the help of a team of lawyers, Nemanich and a fellow Colorado elector, Polly Baca, are working to challenge this restriction as unconstitutional under the Twelfth Amendment and in its direct contradiction to the 1952 Supreme Court decision in Ray vs. Blair.
“It was always implicit that an elector was a free agent,” Nemanich said. “They don’t have the power from their supremacy clause [to require electors to vote a certain way], and they don’t have the power because it’s not even in the law.”
The suit launched on Dec. 5 for a vote on Dec. 19. Though it seems implausible to successfully complete this lawsuit in just two weeks, Nemanich explained that this case is one of accelerated immediate need, like those for death row inmates before their executions. Already, this case has been moved to the top of the docket in Denver, and though still subject to change, is scheduled to have a hearing in court on Friday.
“We want to free up the electors where they can vote their conscience without threat of penalty,” said Nemanich. If the Hamilton electors can convince at least 37 current electoral voters to vote against Trump, they have a chance of keeping Trump out of the White House. “Us 270 will determine who the next President is,” Nemanich continued, “Nobody else.”
In an effort to reach a viable compromise, the alternate candidate of choice will likely not be Clinton. As reported by a Politico article written by Kyle Cheney and Gabriel Debenedetti, Colorado elector and member of the Hamilton electors Michael Baca said, “Many electors are saying that Governor John Kasich would be best for our country. A consensus is beginning to form that Governor Kasich would be best positioned to unite America.”
Republican elector, Christopher Suprun from Texas, agrees with this consensus. “Presidential electors have the legal right and a constitutional duty to vote their conscience. I believe electors should unify behind a Republican alternative, an honorable and qualified man or woman such as Gov. John Kasich of Ohio,” he wrote today in a New York Times op-ed outlining his concerns of our President elect.
Kasich himself, however, is not on board. In a tweet on Dec. 6, he said “I am not a candidate for President and ask that electors not vote for me when they gather later this month. Our country had an election and Donald Trump won.”
Nemanich reflects on the four other elections in which the Electoral College played a controversial role in electing the president against the popular vote. “John Quincy Adams?” He asked. “Failure. Rutherford Hayes? His administration considered a failure. Benjamin Harrison? You had again a failed administration. Bush… is Bush’s presidency considered to be successful? No.”
If Trump is to win the presidency, he will be in the same position as Presidents Adams, Hayes, Harrison, and Bush. “Ultimately,” Nemanich said, “a representative form of government, a democracy, only can rule if it has consent of the nation.”
Voting for a candidate that is neither Trump nor Clinton, however, does not solve this problem. As Nemanich said, “If we vote in somebody who is not on the ballot of President of the United States, and that person gets 270 electoral votes, how are they going to get the consent of the nation?”
As of now, Nemanich is primarily concerned with giving electors agency to vote their conscience. “What happens afterward,” he says, “is not our responsibility.”
If electors in all 29 restricted states are awarded the ability to vote their conscience as a result of Nemanich’s and Baca’s lawsuit, it is possible that 37 current Trump electors will vote against him. It is unlikely, however, that 270 electors will unify around Kasich or any single candidate. If no candidate receives 270 votes, the election decision will then move to the House of Representatives.