DENVER (CN) – A federal judge denied two Colorado electors’ requests Monday to vote for neither Donald Trump nor Hillary Clinton, and Washington’s attorney general told two electors from his state that they could vote as they pleased – but that it would cost them.
Two Colorado electors sued their state a week ago, saying they did not want to cast their electoral votes for Clinton, who won the state, but didn’t want to vote for the “unqualified” Trump either.
They asked Secretary of State Wayne Williams to let them vote for a third-party “consensus candidate,” a request that Williams called “odious.”
U.S. District Senior Judge Wiley Daniel seemed to agree with Williams in a motion hearing Monday, and denied the electors’ request for an injunction.
Former Colorado House and Senate member Polly Baca and her co-plaintiff Robert Nemanich are not the only so-called “moral electors” to resort to court this year in indirect attacks upon the Electoral College.
Two Washington electors sued their state on Dec. 8, asking to be excused from voting for Clinton, who won Washington with 54 percent of the vote. The Washington electors, P. Bret Chiafalo and Levi Guerra, don’t want to vote for Trump either, whom they call “unfit for office.”
They asked for a federal injunction to let them vote for a third candidate “upon whom electors from both parties and along the ideological spectrum can agree.”
Washington’s governor, attorney general and secretary of state responded Monday, saying they could not force the electors to do their duty, but since the only punishment the state can mete out is a fine, the electors do not face irreparable injury, nor are they likely to prevail on the merits, so they do not deserve an injunction.
“In fact, unlike in other states, nothing in Washington law directs the state defendants to remove an elector from a party’s slate or reject an elector’s ballot if they vote against their party pledge,” Attorney General Bob Ferguson wrote in the response for himself and Gov. Jay Inslee.
The “only action” that Washington state law authorizes “is a civil penalty against any elector who votes for a person not nominated by the party of which he or she is an elector,” the officials wrote in their response to the court.
“Because plaintiffs cannot show they are likely to succeed on the merits or that they will suffer irreparable injury, this court need not reach the remaining elements for obtaining injunctive relief,” Ferguson wrote.
He added: “(T)here is no clear harm to plaintiffs. State law would not invalidate their electoral ballots should they choose not to comply with their party pledge. And any financial penalty that plaintiffs may incur by not complying could be subject to legal challenge and judicial review. In contrast, the state and the public will be substantially prejudiced if Plaintiffs receive their requested relief. While plaintiffs can challenge any monetary penalty later if one is ever imposed, there is no mechanism for the state or its voters to alter electoral votes after they are cast.”
Ferguson called the electors’ lawsuit “a misguided and misinformed application of the law.”
In Colorado on Monday, those electors’ attorney, Jason Wesoky, said in an interview that Colorado law was not as cut and dried as Washington’s.
“The law is unclear in Colorado,” Wesoky said, but judging from Secretary of State Williams’ “threats and statements,” he expected that his clients’ votes “would be invalidated and the electors replaced by an alternate.”
He said his clients probably would face a fine, as would the Washington electors. Wesoky, who is with Darling & Milligan, said Williams “has seemed to intimate that my clients would be charged with violating election law, which carries a max fine of $1,000 and a max sentence of one year.”
Wesoky called his clients “two brave Coloradans trying to fulfill the Framers' intent of the Electoral College.”
The secretary of state, he said, “demands that my clients simply vote as the state did, which renders the Electoral College meaningless. Why have it if they're just a rubber stamp?”
After the Monday hearing in Denver, Wesoky said he intended to press the litigation despite Judge Daniel’s order. The “moral electors” have yet to choose a candidate, Wesoky said.
“I don't believe they have settled on a consensus candidate, and electors across the country are engaging in an ongoing dialogue among themselves,” the attorney said.
“As they have stated, they are considering a wide range of consensus candidates, while also considering Clinton [and Timothy] Kaine, including Gov. Romney, Sen. McCain, and Gov. Kasich.”
And in California on Friday, elector Vinzenz Koller sued his governor and attorney general for the same reason, in San Francisco Federal Court.
Without specifying which candidates he prefers, or abhors, Koller said he “seeks the protection to act as a presidential elector not merely by placing a ceremonial vote, but as part of a deliberative body, placing a vote that is most likely to ensure that only a person with the adequate qualifications for office be voted in as president of the United States.”
Koller acknowledges that Clinton and Timothy Kaine won California, “and are qualified for office,” but says he “cannot be constitutionally compelled to vote for them.”
He wants an injunction allowing him to vote “for whomever he believes to be the most qualified and fit for the offices.”
The Electoral College convenes on Monday, Dec. 19.
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