"The question of removal was directly raised in the state court, and the judge ordered that an elector who does not vote as Coloradans voted can be removed," said Wayne Williams, Colorado’s Republican secretary of state. | AP Photo Legal clash brewing over threat to remove Colorado electors

Colorado’s Republican secretary of state is brushing aside a federal ruling that questioned his authority to remove presidential electors who defy the statewide popular vote, setting up a potential legal clash less than two days before the Electoral College meets to choose the president.

Wayne Williams said he’s been authorized by a state court to remove any electors who refuse to cast their votes for Colorado’s popular-vote winner, Hillary Clinton. Several of Colorado’s Democratic electors say they intend to vote against Clinton as part of a broader strategy to convince Republican counterparts in other states to reject Donald Trump’s election. Two of those electors, Polly Baca and Robert Nemanich, mounted a legal challenge to a Colorado law that forces them to vote for Clinton. Colorado is one of 29 states with similar “binding” laws on the books.


A three-judge panel of the 10th U.S. Circuit Court of Appeals on Friday ruled that the state law may remain in effect, but the panel suggested strongly that any attempt by Williams to remove and replace electors who violate the law could run afoul of the 12th Amendment, which sets out the Electoral College voting process.

In their order, the judges noted that the dispute over removing electors “is not a question that has been posed” by Baca and Nemanich. But they added that any attempt by Williams to remove electors "after voting has begun" would be "unlikely in light of the text of the Twelfth Amendment."

But Williams told POLITICO he’s likelier to heed the recent ruling of a state court that permits him to eject electors who violate their pledge to Clinton.

"As the federal court stated, this issue was not before them,” he said. "The question of removal was directly raised in the state court, and the judge ordered that an elector who does not vote as Coloradans voted can be removed. … According to the binding court decisions, faithless electors can be removed, which preserves the votes of the nearly 3 million Coloradans who cast their ballots in the November election."

But attorneys working with the Colorado electors rejected Williams’ argument.

“Colorado officials may interpret Colorado law to require this, but they cannot do anything that conflicts with the constitution,” said Mark Lemley, a Stanford University law professor. “The federal court strongly suggested that the state had no power to act under the 12th Amendment. I am very surprised that a Colorado officer would announce the intention to do something the federal court [says] they shouldn't try, because it would likely violate federal law.”

Lemley is part of Electors Trust, a group of prominent constitutional lawyers — including Harvard University’s Larry Lessig — advising electors who wish to break from Trump. They celebrated Friday’s appeals court decision as the first evidence ever issued by a federal court to suggest electors may be constitutionally free to vote for whoever they want.

“The 10th Circuit signaled pretty strongly that electors are free to vote their conscience, even in states that say they must vote for the winner of the popular election,” the lawyers argued.

Laurence Tribe, who isn’t officially affiliated with the group but has lent support, agreed that the 10th Circuit ruling should take precedence over Colorado’s law.

“This is a federal constitutional issue. The text of Article II and the 12th Amendment, and the reasoning of the U.S. Court of Appeals for the 10th Circuit, carry far more weight than the state court's opinion here,” he said.

The Electors Trust lawyers added that the appeals court’s suggestion that electors can’t be removed for violating their states’ elector-binding laws should apply in other states.

“The upshot of all this is that this opinion provides reasonably strong support for the proposition that states cannot remove electors because of the votes they cast under the 12th Amendment,” the lawyers argued. “In other states in the 10th Circuit, including Oklahoma, Kansas, Utah, and Wyoming, that opinion should make it improper for a state official to try to do so. And as the only precedential decision from a court of appeals on the issue, it is likely to be persuasive in other circuits as well.”