Donald Trump won the popular vote in states that include 306 electoral votes, and he'd easily clear the 270-vote threshold to become president if all Republican electors support him. | Getty Electors take anti-Trump battle to court

Two presidential electors in Colorado are heading to court Tuesday to try and boost their extreme long-shot gambit to stop Donald Trump from officially being elected president when the Electoral College votes on Dec. 19.

Democratic electors Polly Baca and Robert Nemanich are filing suit in federal court to overturn a state law that forces them to support the winner of Colorado's presidential popular vote, in this case Hillary Clinton. But a successful bid, they say, would undermine similar laws in 28 other states, empowering Republican electors in those states to reject Trump.


In the legal filing, obtained by POLITICO, lawyers for Baca and Nemanich argue that Colorado's statute is flatly unconstitutional because the Founding Fathers intended presidential electors to have free will when casting their votes — and to consider the popular vote as merely advisory.

"Plaintiffs are entitled to exercise their judgment and free will to vote for whomever they believe to be the most qualified and fit for the offices of President and Vice President, whether those candidates are Democrats, Republicans, or from a third party," they argue in a brief signed by Denver attorney Jason Wesoky.

The suit is accompanied by a motion for a temporary restraining order, a filing intended to halt the enforcement of the Colorado law and that bumps the case to the top of the court's docket. They've requested a hearing as soon as Friday and proposed several hearing dates next week as well.

Colorado's law, as in many of the 29 other states with elector binding statutes, authorizes election officials to remove any elector who votes against the candidate of his or her party. That elector is then replaced with an alternate.

But those laws, until now, have never been enforced or tested. And the resolution of this court case will answer decades-old constitutional questions about whether electors may be compelled to vote for a specific candidate.

Baca and Nemanich are part of a group of Democratic presidential electors urging their Republican counterparts to reject Trump and support an alternative Republican candidate for president. But several Republican electors — even those wary of Trump — have argued that they're compelled by state law to support him. A successful challenge of one of those laws, the anti-Trump electors say, will embolden more Republicans to come out against Trump.

The 538 members of the Electoral College meet in their respective state capitals on Dec. 19 to cast the only Constitutionally valid vote for president. Trump won the popular vote in states that include 306 electoral votes, and he'd easily clear the 270-vote threshold to become president if all Republican electors support him. That's why a group of eight Democratic electors is furiously lobbying to convince at least 37 Republicans to break from Trump, a highly unlikely outcome that would strip Trump of his status as "president elect" and send the final decision to the House of Representatives.

Taking down some of the 29 state binding laws is the linchpin of their strategy.

One Republican elector, Chris Suprun of Texas, has publicly declared his opposition to Trump. The 9/11 first responder hails from one of the 19 states without an elector binding law.

Colorado's state law requires that "each presidential elector shall vote for the presidential candidate ... who received the highest number of votes at the preceding general election in this state."

In their brief, Baca and Nemanich say Colorado's statute violates multiple constitutional principles. The most basic is the Founders' conception of the Electoral College itself, contained in Article II. Citing Alexander Hamilton's original description of the Electoral College, they note that the Founders intended it to act as a check on the popular will, to ensure the election of a qualified candidate. In fact, for the first century of America's existence, most states didn't hold popular elections for president, and states simply appointed electors.

The electors argue that Colorado's law "enables demagogues, compels the electors, in contravention of the First Amendment, to vote for them, and eliminates debate among the electors on the vital public issue of who should be President."

They argue that Colorado's law violates the 14th Amendment's equal protection clause because it renders electors' votes meaningless. They say it violates First Amendment free speech because voting "is the highest and most protected form of speech."

And they cite a 1952 Supreme Court case, Ray v. Blair, in which justices left open the notion of whether electors could be compelled to vote a certain way or penalized for failing to do so.

"It’s difficult to imagine a more impermissible law than one that requires someone to vote for a specific candidate. The concept is antithetical to the notion of democracy, free speech, and the Electoral College," they write.

Electors rejecting their party's candidate have been rare in American history. Already, the eight Democrats promising to vote for an alternative Republican candidate represent more so-called "faithless" electoral votes against a presidential candidate than at any time in American history. The second-most came in 1808, when six electors rejected James Madison. Most other faithless votes were cast against vice presidential nominees.

The last time the House resolved a presidential election was in 1825.