UPDATE: The Colorado Senate passed the measure by a party-line vote Tuesday 1/29/19, after the Senate Committee voted to pass, again on a party-line Colorado Politics article here: Next up is the House in the General Assembly scheduled in February.
This week through the intensifying winter weather our family was first burdened to fly into (Chicago) during a winter snowstorm. Snowstorms happen in Chicago and invariably followed by diving Arctic temperatures. Because of the constant winds and its relative humidity, 5 degrees in Chicago feels colder than 5 degrees in dry Colorado. Flying back on Monday we had to face the prospects of a genuine high plains blizzard the next day, capped off by a fast-moving snowstorm on Thursday's morning commute. The symbolism I am attempting to make is that democracy is often challenged by forces in our political climate attempting to manipulate political powers over this people's self-government like winter weather overriding the plans of modern life. Yet after these political squalls often obstruct the people's voice are eventually pushed aside by the sun's rays reaffirming the people's demand for democratic self-government over authoritarians who stoke fear for control. That is a parody of my experience last week---the challenge of the "we the people" demanding their voice for to choose their president while our demand as electors for free will discretion to determine who are our leaders in this self-government.
Over the Martin Luther King Jr holiday weekend, our family flew to Chicago to belatedly celebrate my wife's father's 90th birthday. We thought the Martin Luther King Jr holiday weekend was a good travel weekend. Over the last two years, I have often discussed with my father-in-law how his personal experiences living through the Great Depression, World War II, the Cold War the Cuban Missile Crisis, both Kennedy's Assassinations, and Watergate compared to this historical chapter of Trump's presidency. Those previous tumultuous events underscored his first fifty years, compared to now, in between world that period and the last forty years were fairly docile until now. World War II was the worst where practically everyone he knew felt that if the U.S. didn't prevail, the country and their own personal lives would be greatly threatened. He now feels the same as we have to succeed over the Trump's conspiracy.
As the big party was coming to its conclusion I got into a conversation with one of our family members about our case about the Electoral College, who also happened to be a lawyer and political activist about overturning Colorado's state law C.R.S. § 1-4-304(5) commanding that duly selected presidential electors vote for the winner of its popular vote absolutely. She disagreed with our lawsuit and our position---firmly. Of course, that is fine, each of us has a voice be it we agree with state laws or even constitutional amendments. But then I responded with a simple question. What is a vote in a free society? In my mind, a valid vote is only a vote if it is of the voter's free will where they have unfettered discretion. If a vote is commanded by the state or other official entity it is not a vote, but something else. She replied that not in this case and then walked away.
The conversation shook me deeply, especially in the quiet moments flying back from Chicago. Not that she disagreed but that she was willing to hold a position that votes in America for the president can be parsed where some votes are not of free will, while others are even though they are not constitutional electors---count absolutely. A true quandary and I get it. It's not the first time people whom I know disagreed with our stance seeking free will voter discretion in the Electoral College. But it was her unwillingness to delve deeper into the XII Amendment that upset me, she is a lawyer and lawyers debate their positions. Her position regarding the Electoral College offered a deeper reveal. The illusion, the desire, the belief, that our individual vote for president, regardless of which state one resides in, is actually constitutionally meaningless outside of completing the selection process of electors. Very few people know this or find it to be valid. It was then that I had great empathy for those who are so uninformed constitutionally regarding about America's voting rights in general and the purpose of the Electoral College. In part it is from the Appellate Court hearing when a judge brought up the short form and long form, meaning that electors on the short form don't mention electors.
The following is my narrative to what happened Wednesday and an edited report from our lawyer's narrative as to and what I learned about various opinions and matters of interpretation to the laws governing voting.
Wednesday, January 23, 2019, visiting Colorado State Senate and testimonies regarding SB19-042; National Popular Vote; Committee State Veterans & Military Affairs., Conference Room 357.
I arrived at the State Capitol at an appointed time to meet with Colorado Springs State Senator, Pete Lee. He has been my friend since 2006. He was still on the floor as an extended debate over a series of amendment calls regarding bill about transportation requirements for public school districts involving foster children moving in or out of districts. It was political sausage making as the Republicans, led by another Colorado Springs State Senator Owen Hill attempted to modify it for the purposes of providing transportation funding for private and charter schools. Pete was so gracious to make me a guest of his, bringing me down on the Senate Floor to observe. One relative comment by Pete was: "The majority rules, but the majority must give the minority its opportunity to voice dissent". In that experience, I watched four votes by Senators who voted their free will and discretion by standing.
1:30 PM was the scheduled time for the hearing I was asked to testify to the State Senate Committee held in its largest conference room where already I estimated over fifty people outside waiting in its vestibule. My fellow elector litigant was there as were other dignitaries, including Judd Chote, the Secretary of State's Director of Elections. Testimonies were divided into one proponent then one opponent alternating from then on. At the time it finally got started after 2:00 PM there were 72 persons signed up to testify.
Testimonies went back and forth, proponents were consistently favoring about one person, one vote, others brought up (Polly Baca), pictured here at the table testifying,
What really came about was the inordinate and yet consistent demand by the proponents to the bill regarding the concept of one-person, one-vote with equal measure where the popular vote was the only means to accomplish this. I was not able to testify until well after 5:00 o'clock where there were still 37 people in the room. By my count it was about 4:50 after roughly 66 people had testified, 33 to 33, that the opponents ran out of witnesses. That left 70 in favor and 33 opposed, ironically mirroring the opinion polls regarding the desire for the popular vote. Here is my written statement I was able to read to the committee.
Madam chair, senators, my name is Robert Nemanich, from Colorado Springs, an Unaffiliated voter and I was a Presidential Elector in 2016. That experience that gave me great insight into the present dysfunction of the Electoral College and the demand that the popular vote be the means to elect our president. There is a misunderstanding to Electoral College and its purpose. Misunderstood as its primary purpose described in the words by Hamilton in Federalist 68.
" a practicable obstacle opposed to cabal, intrigue, and corruption", and "chiefly from the desire in foreign powers to gain an improper ascendant in our councils...by raising a creature of their own to the chief magistracy of the Union."
We know the last five presidential elections two Electoral winners did not receive a majority of popular votes. Last April, in an extensive report published by the American Progress Institute found that the real possibility exists that the next five presidential elections could see the Electoral College winners not receiving the majority in the popular vote. That should give everyone pause.
Senator Sonneberg you inquired whether if the compact is installed, indeed Colorado electors will be asked to vote for the winner of the national popular vote, not who won in Colorado.
At its core, a functioning democracy requires: One Person, One Vote. All votes counted with equal measure. The majority of votes, wins---governs. Then and only then, it is recognized as the will of the people.
But it appears here that there is much debate about this basic concept.I am confident that each one of you voted in the last election offering your own consideration, a belief that your vote for president was important and would be counted, no different than all other Coloradoan voters. I hear this over and over again as persons engage with me about the Electoral College. They demand to have their vote actually be meaningful and count.
The reality I tell them is something else. Those votes in Colorado merely completed the winner take all Presidential Elector selection process. If the compact is activated then the electors selected must hold to democracy's national result, not a state partisan affiliation.
The Presidency is a national office, one that governs all of us. Only the measure of who wins the popular vote can attest truly to democracy in declaring our leader of this national government and head of state. The National Compact is the best solution within our present constitutional system to rebuilding of our democracy and save our nation from this existential dysfunction that is now present.
Thursday, January 24, 2019, attendance as a plaintiff in Baca, Baca, and Nemanich vs Colorado Secretary of State, U.S. Court of Appeals, Tenth District.
Thursday the weather forecast was not favorable as predictions stated a fast-moving winter snowstorm was going to arrive right at prime commute time over the Monument Pass, then all the way to Denver. Fortunately, the snow didn't arrive until we were between I-225 and Denver University. The drive in from the superhighway suddenly accumulated into inches of snow as we traveled down Lincoln Avenue during the morning commute. We were able to make it into the courtroom by 8:35 AM, allowing us to listen to the two cases heard ahead of our case. The session was presided by three Appellate Court Judges; two women, Judge Briscoe, and Judge McHugh and an African-American male, Judge Holmes. All three were exceptionally capable and drilled through the respective arguments of every attorney representing their clients and getting to the kernel of the legal matter. Judge Holmes in the two previous cases was the most active probing the reasoning and merits. stripping at the arguments of the lawyers. Judge Briscoe seemed to sum things up while Judge McHugh was rather passive in those hearing. Things seemed to change when our case was heard.
Here is a link to the recording of the proceedings: https://www.ca10.uscourts.gov/
[Jason Harrow, our solicitor from Equal Citizens, the nonprofit group that took on our legal fight led by Prof. Larry Lessig, Dean at Harvard Law School] stepped to the podium and introduced himself, and our contingency and was able to make a brief opening statement before the judges began asking him questions. Encouragingly, none of the questions were about the plaintiff's standing; where all three went right to the heart of the matter. During he back and forth, Harrow repeatedly reiterated the federal function of presidential electors; He made comparisons between presidential electors, legislative electors, and jurors; invoking the detailed process of the Twelfth Amendment; and trying to assuage some of the judges’ concerns about upsetting public expectations by noting that the state’s appointment power was indeed broad but did not extend to the power to control. The questions brought up by the judges were engaged, where they were well versed in the material, but none seemed to question our fundamental account of electors’ role, and only one judge—Judge Holmes—asked questions indicating a view that the appointment power was broad enough to cover this case.
Assistant Solicitor General Grant Sullivan then stepped to the podium for the State, and he quickly got interrupted by difficult, even hostile questions, from two judges: Judges Briscoe and McHugh. Their questions seemed to reveal that neither accepted many of the state’s fundamental premises: that citizens vote for president rather than electors; that electors exercise a “ministerial function”; and that the appointment power could extend this far. Judge McHugh in particular was well versed in the history of the Twelfth Amendment. Judge McHugh pointed out that there had been faithless electors prior to its passage, where the drafters of the amendment changed nothing about electors’ role. This point was made by the contribution by our wonderful amici for fleshing this out in detail! Judge McHugh also noted that the electoral college seemed designed to prevent the “unwashed masses” from making the final decision for President.
When the State Attorney General's Asst. Solicitor took the podium he was immediately peppered by the judges causing the AG Solicitor to mostly flounder in response to commanding the vote even after the electors were in session. He then punted and repeatedly back to the Article II's appointment power, but this seemed not to satisfy at least two of the judges, McHugh and Briscoe. Judge Holmes was silent during the state’s primary merits argument seemingly out of character from the first two cases.
With only a few minutes remaining, the State turned to its argument that our clients lack standing, but this apparently proved to be a tactical mistake; Grant Sullivan got hostile questions from all three judges on this issue, as they all viewed this as a case presenting an allegation of personal injury. It seemed odd that Judge Holmes seemingly recognized the personal nature of the right here but does not appear inclined to extend it to the merits of the case, we all hope that perhaps he will reconsider.
In Harrow's rebuttal, he emphasized the context of the Twelfth Amendment and the judicial role in resolving this question. Only Judge Holmes jumped in to repeatedly ask me why Colorado could not try to give effect to the popular vote, where our counsel explained the limitations of the state’s power. Judges Briscoe and McHugh asked our counsel no questions on rebuttal, which we took to be a good sign.
The team is cautiously optimistic that we have at least 2 of the 3 judges on our side—but now we wait. A decision could come at any time. Jason Wesoky. estimates it may take a few months; he says his cases usually take 4 months or more, but that he thought the court might move more quickly here. We'll be in touch the moment we get a decision.
All in all, this was quite educational as to finding the views regarding voting by the general public transposed over the views regarding voting in the Electoral College. It appears however in both regards is that the sun is beginning to shine through the political squalls attempting to obscure, suppress or even command votes and voters. I am struck by seeing all this pointing to a study by psychologists at the University of California Berkley, published back in 2006 wherein their report on how conservatives are cognitively and emotionally driven not to believe or ascribe to equality of voting. The two primary points are that cognitively they know less voting offers their conservative view possesses a greater weight in political power. Emotionally, they are fearful that if the masses vote in a full measure it will lead to chaos. I heard this reasoning over and over again at Colorado's State Senate hearing. In that hearing, Senator Marble (Rep) kept bemoaning that the rural vote was a minority that should be given greater weight (much like how they handicapped racehorses who are faster so betting is more equalized or if they allowed lesser seeded teams in the NCAA basketball championship play on their home court with their own fans), in her view city voters are more numerous and would lead to tyranny over the rural way of life. Many testified that if the popular vote was installed as the means of electing the president directly, it would be the tyranny of the majority over small states and the greater amount of land. Senator Sonneberg (Rep) voiced his rejection to the NPV through the national compact, that chaos could ensue with a direct popular vote much like Venezuela or France.
On the other hand, the only constitutional means currently to electing the president is through the electoral college connecting with liberals cognitive and emotional drives regarding voting. Emotionally liberals fear the tyranny of the state creating an authoritarian state where suppression of voters is followed by commanding the vote and therefore leading to one partisan government. Remember the Karl Rowe wish of a permanent conservative majority. Cognitively, liberals look at enfranchising the most amount of voters as to ensure democracy and equality, holding back authoritarian partisans who are in government, note Wayne Williams authoritarian and expansive use of commanding our Elector's vote. This is the push and pulls many in seeking the expression their worldly view in voting and who and how voter participation is exercised in America. My father does not ascribe to equality voting since many are uneducated and subject to great prejudice or superficial influences, that of course was reserved for those who voted against his world views. When my grandparents were approaching 90 he defended their right to vote as they voted the "right way".
My view is more liberal of course, but cognitively only a legitimate self-governing republic can happen and be just and effective if a vote is only a vote, if it is of a free will where the individual has full discretion. This week's U.S. Senate vote where six Republicans broke partisan ranks voting against Trump's shutdown over his border wall. Their discretion changed the standoff and forced movement to resolve the crisis where my son was directly affected not being paid for over a month, Their act of voting against their party expressed their conscience without the state punishing them.
Back in 2016 when I sought to legally be "faithless" I was attempting to use my free will discretion to be an obstacle of what I viewed as an electoral result involving a cabal, intrigue, and corruption, therefore protecting the nation over the results of the political party system. Some including my family members don't ascribe to electors having this right regardless of Trump and his extraordinary circumstances or what the founder's intent was for the Electoral College. They want their vote to possess supremacy, no different than all other elections nationwide and to be counted as the actual vote for president, as the choosers (AKA the constitutional term electors), not one step removed. I get that of course, but that is not the constitutional means. We shall see, whether a state has the constitutional right to command a vote of electors or do electors have free will discretion? And whether our quest to the U.S. Supreme Court over this matter is in part the impetus to propel the country to finally bring about the national popular vote as the official means to elect the president.
Back in 2016 when I sought to legally be "faithless" I was attempting to use my free will discretion to be an obstacle of what I viewed as an electoral result involving a cabal, intrigue, and corruption, therefore protecting the nation over the results of the political party system. Some including my family members don't ascribe to electors having this right regardless of Trump and his extraordinary circumstances or what the founder's intent was for the Electoral College. They want their vote to possess supremacy, no different than all other elections nationwide and to be counted as the actual vote for president, as the choosers (AKA the constitutional term electors), not one step removed. I get that of course, but that is not the constitutional means. We shall see, whether a state has the constitutional right to command a vote of electors or do electors have free will discretion? And whether our quest to the U.S. Supreme Court over this matter is in part the impetus to propel the country to finally bring about the national popular vote as the official means to elect the president.
Thanks Bob, A thorough and enlightening account. We shall see.
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