The Colorado Electoral College member who went rogue by not casting an official ballot for Hillary Clinton in December is suing Secretary of State Wayne Williams claiming Williams violated his constitutional rights by removing and replacing him and not counting his vote.
Micheal Baca, 25, and a self-described member of the Hamilton Electors movement, has joined a federal civil rights lawsuit brought by two other Colorado electors, both Democrats, his attorney said Wednesday.
Those two electors, Bob Nemanich of Colorado Springs and Polly Baca (no relation to Micheal) of Denver, argue Colorado’s Williams, a Republican, intimidated them into casting their electoral votes for Clinton on Dec. 19.
National election law expert and Harvard professor Lawrence Lessig filed the federal complaint in Denver district court in mid-August, and says he is filing a new one Sept. 20 adding Micheal Baca’s name. While the other two electors say they were intimidated, Baca was actually removed as an elector by Williams, Lessig emphasizes.
The news comes less than a month after Colorado’s Republican attorney general, Cynthia Coffman, declined to prosecute Micheal Baca for violating a state law that says electors must cast their votes for the presidential candidate who wins the state’s popular vote. In a dramatic scene during the Electoral College vote ceremony in the state Capitol on Dec. 19, Williams presented the state’s nine electors with a new oath requiring them to pledge they would cast their ballots for the winner of Colorado’s popular vote and making it easier to charge them with a crime if they didn’t. But when it came time to vote, Micheal Baca wrote in the name of Ohio Gov. John Kasich instead, and Williams immediately stripped him as an elector and replaced him with someone else.
Afterwards, Williams asked Coffman to investigate Micheal Baca for a potential crime, calling him a “faithless elector” who violated an oath.
Coffman, who has said she is exploring a run for governor, said she didn’t want Baca to use Colorado’s court system as a platform to make more headlines. Williams said he is “disappointed” the AG didn’t pursue the case.
Related: Colorado AG won’t prosecute the Hamilton Elector who voted for Kasich not Clinton
Now, Baca is nonetheless making headlines again.
The civil lawsuit is against Williams personally, not in his capacity as secretary of state. It accuses him of intimidating the three electors and asks a judge specifically to find Williams violated Micheal Baca’s “federally protected rights” by depriving him of those rights to act as an elector.
The suit delves into the history of the Electoral College and relies on the U.S. Constitution and the writings of Founding Father Alexander Hamilton in the Federalist Papers to argue electors have a right to vote their consciences and state laws that say otherwise are unconstitutional.
“What I do hope is that the Pandora’s Box that I opened in 2016 gets clarified for 2020 because I imagine that another elector movement could occur again,” Micheal Baca told The Colorado Independent. “This is something that the courts need to clarify going forward on what the exact role of an elector is.”
Here in Colorado, the three electors suing Williams were part of a small movement among the nation’s 538 members of the Electoral College who wanted to deny Trump the 270 Electoral College votes he needed to take office by persuading enough others to vote for a palatable alternative.
Related: The Electoral College plan to stop Trump explained
All three electors wanted to vote for someone else— perhaps Ohio Gov. John Kasich or another moderate— with the hope that enough other national electors would do the same to block Trump. They called themselves Hamilton Electors because of Alexander Hamilton’s writings about the Electoral College being a potential safeguard to keep a demagogue from the White House if necessary.
Before their Dec. 19 vote, electors Polly Baca and Nemanich went to federal court arguing they should be able to vote their consciences but lost. They appeared again in state court where a judge said there could be repercussions if they didn’t follow state law.
Baca, who served in the military, says being a Marine embedded in him core values of honor, courage and commitment.
“A lot of people may say that doing what I did was not honorable, but I feel that I looked at the Constitution, I was able to digest it to a degree, and understand that electors have certain rights,” Baca says.
Although Williams is being sued personally, he says the only actions he took were as secretary of state. He says he followed instructions from a state judge throughout the Electoral College voting process.
“I do know that they have lost repeatedly in every court that has heard their matter,” Williams said of the electors who are suing him. “I expect that the courts will continue to support the rights of the 2.9 million voters in Colorado whose votes they tried to steal.”
Lessig says the plaintiffs aren’t in the lawsuit for money and have capped their damages at a dollar. He says he hopes for a quick ruling that answers the question about whether members of the Electoral College can vote their consciences.
“Regardless of what you believe the law is, it’s really important that it be clear before the next election,” he says.
Very important that the constitution be made clear regarding the Electoral College in Art II, Sec 1, so I hope this case is appealed all the way to a decision by the Supreme Court. It makes no difference what any of us thinks until the Court acts, and that may take years, but let’s hope not beyond the next Presidential campaign, because it really matters who we choose as Electors. In the meantime, I hope more states will become members of the National Popular Vote Compact, which does not require that we wait for Supreme Court action. I expect Senator Andy Kerr once again will attempt to pass a bill for Colorado to join the Compact.
Electors don’t have “federally protected rights”. I quote from Article II: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”