Regardless of who got your vote in November, we can probably all agree that this election has been the source of more tension and dissension than any in recent memory. Donald Trump won the election by receiving 307 Electoral College votes. Many sources say that Hillary Clinton won the popular vote by over two million votes. Some people have been calling for a recount. Mr. Trump has been saying he really won the popular vote if you take away the millions of supposedly fraudulent votes.
So with all of these conflicting feelings and claims flying back and forth, it shouldn’t come as much of a surprise that now some in the Electoral College – including a few from Colorado – are threatening to become “faithless electors” by voting against the desires of the majority of voters in their state.
These individuals are known as electorates. Normally, the electorates of a specific state cast their vote based on the popular vote in the state that they represent. In other words, if the majority of voters in a state voted for Trump, the electorates of that state will vote for Trump. Likewise for Hillary.
There is no federal law requiring electorates to vote with their state’s popular vote, however, and no federal punishment for electorates who vote against their state’s wishes. The same thing cannot be said at the state level, though, and that’s where things get interested.
In Colorado, we have a state law requiring those in our Electoral College to vote with in line with the state’s popular vote. In other words, if electorates vote in a different way, it is a criminal offense. Specifically, they will be charged with a misdemeanor offense.
Court Battle to Avoid Trump, Misdemeanors
Colorado’s electorates include two Democratic electors who have sued for the right to vote against the state’s popular vote results. This is particularly interesting because Hillary Clinton won Colorado’s popular vote, earning nine votes in the Electoral College.
Essentially, those Democratic electors are attempting to win the right for all electorates to vote their conscious so that Republicans who don’t want Trump in office can vote for a different candidate.
On Tuesday, December 13, a state court judge said that electors must vote in line with popular vote results or vacate their positions. However, that decision has been appealed and will go to the state Supreme Court. Moreover, a case is also still pending in federal court.
As of right now, electorates in Colorado who don’t follow state law will be charged with a misdemeanor. What might that mean for them?
How Can a Vote against Trump Become a Misdemeanor
Misdemeanor offenses aren’t as serious as felonies. It is a label given to crimes or offenses that warrant up to 18 months in jail. Misdemeanor crimes in Colorado include:
- Property theft
- Possession of marijuana (under 8 oz.)
- Assault in the third degree
However, the penalties for these charges are nothing to sneeze at. If you are convicted of a misdemeanor, in addition to jail time you may also face up to $5,000 in fines and additional penalties based on your crime. These may include community service, educational courses on drug dependency or safe driving, protection orders, and so on.
Having a misdemeanor on your criminal record will also affect background checks and any criminal charges you may face in the future. Bottom line: even though they are “less serious” crimes, misdemeanors are still crimes. Because of this, it makes sense that electors would want to avoid being charged.
How will it all shake out? With only a few days left before electors must vote, we’ll all find out soon enough. Though maybe not. If electors do go against the law to vote their conscious, there’s probably a good chance that they will contact an experienced criminal lawyer to help them fight their charge.
About the Author:
Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012-2016 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state. She has also been recognized for her work in domestic violence cases.