Late this afternoon, the Colorado Supreme Court declined to exercise jurisdiction over the appeal by presidential electors Polly Baca and Robert Nemanich. These means that, absent intervention by the federal courts, the Colorado Secretary of State will be able to remove these electors if they vote for a candidate other than Hillary Clinton or Timothy Kaine when the Electoral College convenes on Monday in Denver.
Baca and Nemanich had previously stated their belief that federal law requires members of the Electoral College to meet, deliberate, and investigate before choosing a candidate for president. These duties are set forth in the writings of Alexander Hamilton and reflected in Article II and Amendment XII of the Constitution. Although Baca and Nemanich each indicated their support for Hillary Clinton, they also expressed a willingness to consider choosing another candidate if the opportunity arose to join with Republican electors in other states to support a bipartisan alternative to Donald Trump.
Today’s ruling was limited to an interpretation of state election law. An emergency appeal is still ongoing in the federal Tenth Circuit, where Baca and Nemanich have asked a three-judge panel to suspend the law altogether because it violates the Constitution. Earlier this morning, Trump’s lawyers filed a brief in that case arguing that Baca and Nemanich cannot be allowed to vote for another candidate, in part because it could disrupt his otherwise orderly transition to power.
The decision not to decline the electors’ appeal today does not create legal precedent, so the issue could arise again in future elections.
The Witt Law Firm’s Jesse Witt has represented Baca and Nemanich in the state courts. Jason Wesoky of Darling Milligan Horowitz PC has represented them in the federal actions.