Will elec­tors re­volt?

Protests planned at state Capi­tol as pres­i­den­tial elec­tion is made of­fi­cial

The Denver Post - - FRONT PAGE - By Brian Ea­son

Monday will ei­ther be one for the his­tory books or — more likely — the last gasp of the so-called “Never Trump” move­ment.

A nor­mally per­func­tory ex­er­cise, the Elec­toral Col­lege meets in state cap­i­tals across the coun­try Monday to cast its votes for pres­i­dent and vice pres­i­dent. But a group called the Hamil­ton Elec­tors has made this year’s gath­er­ings any­thing but nor­mal.

Cit­ing Alexan­der Hamil­ton’s Fed­er­al­ist 68 es­say as their Con­sti­tu­tional jus­ti­fi­ca­tion, the group is try­ing to con­vince enough Repub­li­can elec­tors to vote against Pres­i­dent-elect Don­ald Trump that it would deny him the 270 elec­toral votes needed to be­come pres­i­dent.

The move­ment has sparked law­suits in Colorado and else­where, and anti-Trump protests are planned at all 50 state capi­tols. Colorado’s protest is sched­uled from 9 a.m. to 2 p.m. The state’s del­e­gates are sched­uled to vote at noon at the state Capi­tol in Den­ver.

The odds of suc­cess seem van­ish­ingly small. The As­so­ci­ated Press re­ported last week that it had in­ter­viewed more than 330 of the 538 elec­tors and found lit­tle ap­petite — even among Demo-

— for an Elec­toral Col­lege re­volt.

And it’s not Democrats that the move­ment needs: it’s 37 Repub­li­cans from the 30 states in which Trump won the pop­u­lar vote. That makes Colorado’s rogue Demo­cratic elec­tors ir­rel­e­vant, aside from the sym­bolic value of sol­i­dar­ity with their Repub­li­can coun­ter­parts.

Even if enough Repub­li­can elec­tors broke ranks to force a dead­lock, there would still be no guar­an­tee of suc­cess. Un­der the Con­sti­tu­tion, the Repub­li­can­con­trolled House of Rep­re­sen­ta­tives would then choose the pres­i­dent from the top three Elec­toral Col­lege vote-getters, and could sim­ply re­in­state Trump as the vic­tor.

So it’s a long­shot, to say the least — the move­ment’s own lead­ers ac­knowl­edge as much. But even as de­trac­tors say they’re con­spir­ing to un­der­mine the will of the peo­ple, they de­scribe their re­volt as a moral im­per­a­tive.

“I fear that (Trump) will com­pro­mise our val­ues and com­pro­mise our fu­ture,” said for­mer state law­maker Polly Baca, one of two Colorado Demo­cratic elec­tors who sued the state to be al­lowed to vote their con­science. “I feel it’s our moral re­spon­si­bil­ity to do what­ever we can to stop him from be­com­ing pres­i­dent. As elec­tors, we have that re­spon­si­bil­ity and that abil­ity to stop him.”

So far the group has one Repub­li­can on record. But or­ga­niz­ers say they have as many as 20 anony­mous GOP elec­tors con­sid­er­ing vot­ing against their party’s nom­i­nee — some­thing the Repub­li­can Party it­self dis­putes.

Back­ers in­sist the found­ing fa­thers in­tended for elec­tors to be able to vote as they please.

“The idea is that the elec­tors are a fire wall be­tween a di­rect pop­u­lar vote (and the pres­i­dency),” said Richard Pain­ter, a law pro­fes­sor at the Univer­sity of Min­nesota, and the for­mer chief White House ethics lawyer un­der Pres­i­dent Ge­orge W. Bush.

“If you’re just there to rub­ber stamp it, they wouldn’t have done it (cre­ated the Elec­toral Col­lege),” Pain­ter said in a con­fer­ence call last week with re­porters. “That wouldn’t make any sense to do it that way.”

Some con­sti­tu­tional schol­ars agree — but in prac­tice, the ef­fort has been rife with com­pli­ca­tions.

In Colorado and 29 other states, state law binds elec­tors to vote with the will of the peo­ple. That led Colorado Sec­re­tary of State Wayne Wil­liams to adopt a pol­icy al­low­ing an elec­tor to be re­placed if they didn’t vote for Hil­lary Clin­ton.

A Den­ver District Court up­held the pol­icy last week, and af­firmed crim­i­nal penal­ties for any­one who vi­o­lates it. Baca and an­other elec­tor, Robert Ne­manich, ap­pealed to the state Supreme Court, which on Fri­day an­nounced it would not hear the case.

In a sep­a­rate case in fed­eral court, U.S. District Judge Wi­ley Daniel de­nied a re­quest for a pre­lim­i­nary in­junc­tion to nul­lify that same state law, say­ing that al­low­ing elec­tors to vote against the will of the peo­ple “would un­der­mine the elec­toral process.” That rul­ing is un­der ap­peal.

But even if the laws didn’t ap­ply, many elec­tors re­ject the idea of forc­ing an Elec­toral Col­lege dead­lock in this man­ner. Three- or four­way Elec­toral Col­lege splits have sent the pres­i­den­tial elec­tion to the House of Rep­re­sen­ta­tives in the past — the last time was in 1824. But it’s never hap­pened in an elec­tion like this, in which one can­di­date se­cured enough states to win an Elec­toral Col­lege vic­tory out­right.

There is prece­dent for a so-called “faith­less” elec­tor that votes against their state’s res­i­dents, but it doesn’t hap­pen of­ten. No elec­tor has crossed party lines since 1972, when a Repub­li­can elec­tor cast a bal­lot for the Lib­er­tar­ian ticket, ac­cord­ing to the National Con­fer­ence of State Leg­is­la­tures.

The Hamil­ton Elec­tors have en­dorsed Ohio Gov. John Ka­sich, who was the last Repub­li­can to drop out of this year’s pres­i­den­tial pri­mary.

But the national protest move­ment Monday wants to see Clin­ton elected, cit­ing her 2.9-mil­lion edge in votes in the pop­u­lar vote.

The move­ment’s back­ers are seek­ing to down­play the in­volve­ment of Democrats, even as Colorado’s Demo­cratic elec­tors have be­come a national fo­cus be­cause of their le­gal ac­tions.

“If it’s per­ceived as col­lud­ing with the Democrats, it’s go­ing to be very hard for Repub­li­cans to deal with that,” Pain­ter said. “The back­lash would be ex­treme.”

The back­lash would be ex­treme ei­ther way. What the elec­tors are try­ing to do — deny an Elec­toral Col­lege vic­tory to a pres­i­den­t­elect who won 30 states — is un­prece­dented.

And, ex­ceed­ingly un­likely.

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