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December 15, 2016 12:07 PM UTC

Williams Rages So Hard At Rogue Electors, It's Getting Weird

  • by: Colorado Pols
Secretary of State Wayne Williams (R).

Politico’s Kyle Cheney reports on Colorado Secretary of State Wayne Williams’ latest broadside against two Colorado members of the Electoral College who have sued, so far unsuccessfully, for what they see as their right to cast a “vote of conscience” in an attempt to deny Donald Trump the presidency.

Williams, who has a reputation as a mild-mannered guy as we noted last week, is really fired up:

Williams told POLITICO in a phone interview that he intends to administer an oath to electors prior to Monday’s official meeting of the Electoral College. Any electors who decide to oppose Clinton won’t just be violating the election law that requires them to support Colorado’s popular vote winner – they’ll be violating their oath as well.

“If Elector A writes down Bernie Sanders or Ted Cruz or anyone other than Hillary Clinton, they immediately cease to be an elector and they’re replaced,” he said. “The difference here is you have perjured yourself.”

“If you swear the oath and then immediately violate it,” he continued, “I think there’s a basis for a more severe criminal penalty.” [Pols emphasis]

So, we’ll start by saying that we agree with the basic premise: the vote in Electoral College for Colorado electors is by law bound to the results of the election. Because Hillary Clinton won the state of Colorado, our state’s electors are legally required to vote for her. It’s not that way in every state, but it is that way in Colorado. Because we’re talking about sworn officials carrying out essential functions of the electoral process, we don’t see this is a free speech issue.

Williams noted that he’s not a prosecutor so he couldn’t say whether electors might be charged with felony perjury – a more serious charge that carries a punishment of up to six years in prison and a $500,000 fine – or misdemeanor perjury, which carries a maximum of 18 months in prison and a $5,000 fine.

Here’s where this gets a little strange. This isn’t the first time we’ve heard Williams say he’s “not a prosecutor”–but there’s a marked difference in the Wayne Williams we’re seeing today, haranguing “faithless” electors with perjury threats, and a similar situation Williams faced earlier this year. Back in May, when revelations of petition fraud rocked Jon Keyser’s U.S. Senate campaign–later complicated when it came out that Williams’ office had known about the forged petitions for a month and taken no action–Williams deferred questions about a criminal investigation by noting that he isn’t a prosecutor.

But then Williams went further, affirmatively helping to cover for Keyser by speculating to the press about possible defenses Keyser’s campaign could offer for the forgeries. Williams stated with no evidence, even while asserting he had no power to investigate, that “typically” it’s not the campaign’s fault when they turn in forged petitions.

What’s the difference, you ask, between the Wayne Williams who gave fellow Republican Keyser the endless benefit of the doubt on the record last May, and the Wayne Williams who declared to the media his fervent desire to lock up Democrat Polly Baca?

Never mind, we think we just answered the question.


11 thoughts on “Williams Rages So Hard At Rogue Electors, It’s Getting Weird

  1. What has past practice been?  Have electors been subject to an "oath" requirement in the past, and if not, can he simply arbitrarily decide that he is going to mandate an "oath" when one was not required of the Republican electors in 2000 and 2004?

  2. Wayne may not be a prosecutor, but he might want to hire a lawyer.  Or at least read Ray v. Blair, the case that determined such pledges were allowable under the Constitution.  Taking a pledge ain't making a vote.

    This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weights heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.

    However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. (emphasis mine)


  3. This is full out intimidation by Wayne Williams. Enforcing the law and carrying out the duties of the SOS can be done without threatening felony charges. While Wayne says, "I think there's a basis for a more severe criminal penalty," apparently he hasn't said what that basis is–or it hasn't been reported. Within C.R.S. Title 1 Section 13 on Election Offenses, there are references to Violation of Duty, Failure to Comply with Requirements of the SOS, and Perjury, but all those are specifically misdemeanors. I haven't read through all of Article 1, but there does not seem to be anything there specifically about Electoral College electors (previous sections were deleted).

    Perhaps Williams is looking to penalties for violation of oaths in some other section of law. But there is no need for that to address the current situation, and it amounts to nothing but bullying and intimidation–in the mold of Donald Trump. In addition to the hypocrisy mentioned above re the Keyser case, this does not fit the image of geniality he works hard to maintain.

  4. Williams can't remove Colorado electors once voting has begun, according to an Appeals Court ruling last Friday.

    Here's another take on the story, post – hearing, from Politico's Kyle Cheney: The Appeals court upheld the state law that said Williams may remove electors, but said that it may be unconstitutional. 

    If that sounds contradictory, it's because it is. It does seem to leave room for Baca and Nemanich to vote their consciences, although it also means there will be further court battles if they do.

    By the way,  I know Williams is tall, but the photo really shouldn't be up his nose. Just FYI.

    1. I think the confusion comes from a misunderstanding of what the 10th Circuit is doing.

      The 10th Circuit is not "upholding" the Colorado law that requires electors to vote in a certain manner.  The court is determining whether another court was wrong not to enjoin (stop) Williams from doing something to electors who vote for someone other than Clinton.  The requirements for that are that the electors show that they're likely to win their case ("establish a substantial likelihood of success on the merits of their claims").  The review of the record by the 10th Circuit, which necessarily digs into arguments made by the parties, is needed to determine whether that "substantial likelihood" of victory exists.  It doesn't serve as a decision on whether control of electors' votes is appropriate.

      A court can decide that you don't meet that threshold because your case is well presented but misunderstands the law or because the case you presented wasn't good– which doesn't mean there isn't a good one to be presented.  In fact, the panel did something I love, which was to say, "It's not our job to make the case." while specifically making the case the plaintiffs should have made in the first place.  Things like the Federalist Papers are only helpful to bolster an interpretation of the language of the Constitution– not as a substitute for it.

      tl;dr. The court is being asked to stop the SoS from doing something before deciding what the law is. To do that, they have to look at the case and ask “is this argument likely to be a winner?” Saying no doesn’t mean no argument would win, but this one doesn’t seem likely to.

      1. So you think that this ruling helps SoS Williams more than it does the electors? In that, the state law stands, and it might be unconstitutional, but only if the electors bring a better argument?

        This is Joy Reid and her panel weighing in today. They reference the 10th Circuit decision and Williams, even the up-the-nose photograph, and end in a draw: One says that the elector’s signature to abide by the will of the people in his/her state was the intent of the Constitution’s framers; the other says that it is very clear that the Constitution gave electors the right and responsibility to vote their consciences.

        1. All the ruling does, in my estimation, is tell the electors they need to vote as they will, then make their arguments in court if Williams takes action against them.  This may have the practical effect of stopping the electors' rebellion because it places them in an uncertain position post-vote, but I think there's an argument to be made for their position– if they think that the risk is worth voting as they wish.  I think the 10th Circuit suggested one such argument in its opinion footnote.

          This case wasn't about whether the state law is legitimate; it was about whether the electors could choose to vote for someone else while limiting the ability of the state to come after them for it in some way.  Now they'll have to roll the dice.

          1. Thanks for helping to clear that up. I'm holding onto that slim hope that we will not "elect" a fascist dictator.

            There is a large anti-Trump protest planned for tomorrow in Denver, as in most other states.

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