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CNN Special Reports

CNN Special Report, Count On Controversy: Inside The Electoral College; Colorado's 2016 Faithless Elector Controversy; President Trump's Brother, Robert Passes Away. Aired 10-11p ET

Aired August 15, 2020 - 22:00   ET


UNIDENTIFIED MALE: The following is a CNN's Special Report.

BIRCH BAYH, FORMER DEMOCRATIC US SENATOR, 1969: The present system is dangerous, it's outdated, it's archaic, it's one that needs to be revised.

JOHN BERMAN, CNN HOST: Born hundreds of years ago.


BERMAN: Challenged and criticized but fiercely resilient until now.

MICHEAL BACA, DEMOCRATIC ELECTOR: There are some issues, for better or worse I tried a Hail Mary.

POLLY BACA, COLORADO DEMOCRATIC ELECTOR: He said, I think we can do something about this.

BRET CHIAFALO, WASHINGTON DEMOCRATIC ELECTOR: I decided maybe someone should take a stand.

M. BACA: We were the bad news bears of the political world.

BERMAN: Going rogue meant taking risks.

Did you think you were committing a crime?

M. BACA: No. No.

CHIAFALO: We were fined $1,000.

BERMAN: And the backlash was brutal.

CHIAFALO: Plenty of death threats and hate.

BERMAN: A desperate political play to try to keep one man from becoming president.

M. BACA: I think it scared people because no one's used the Electoral College this way.

BERMAN: That you thought you had the power to change history? M. BACA: I thought that we had the power to prevent a demagogue from taking office.

BERMAN: Election 2020.

JOE BIDEN, PRESIDENTIAL CANDIDATE: On the path to defeating Donald Trump.

BERMAN: But it happened again.

DONALD TRUMP, (R) UNITED STATES PRESIDENT: America should not take lectures on racial justice from Joe Biden.

ALEXANDER: We're going to be in unchartered territory. This is a Pandora's Box.

BERMAN: Tonight a CNN Special Report, Count on Controversy inside the Electoral College.

UNIDENTIFIED MALE: Ladies and gentlemen, please welcome the next president of the United States.

BERMAN: Election year 2016.

TRUMP: Lying crooked, Hillary.


ALEXANDER: It was a very divisive election. You had two candidates that many people considered to be toxic.

TRUMP: The only thing she has going is the woman's card.

CLINTON: Here's the sad truth, there is no other Donald Trump. This is it.

BERMAN: But behind the headlines, something was happening, America was in for a historic surprise.

UNIDENTIFIED FEMALE: Welcome to our viewers in the United States and around the world. It is Election Day in America.

UNIDENTIFIED FEMALE: (Inaudible) about early returns so far from your team?

TRUMP: Very good.


TRUMP: Everything is very good.

M. BACA: I was a little stressed out in the morning.

BERMAN: Micheal Baca was more stressed than most. His vote in his election was still a month away. M. BACA: I think most people in this country didn't think that Donald Trump was going to win. And so I fully expected Hillary Clinton to win the presidency and to cast the ballot for Hillary Clinton.

BERMAN: Baca was one of 538 electors chosen months before Election Day.

UNIDENTIFIED MALE: Each elector must vote separately for the president and vice president.

BERMAN: They would make up the Electoral College to cast the official votes for president and vice president in December, a month after the general election.

And as a Democratic elector from Colorado, everyone assumed Baca would cast his vote for the candidate who won the popular vote in Colorado, Hillary Clinton.

BLITZER: CNN can now project the state of Colorado will go to Hillary Clinton with its nine electoral votes.

BERMAN: As America watched the map on election night, more states, some unexpected states turned red.

BLITZER: Let's take a look at the map right now. You see Donald Trump has taken the lead.

JOHN KING, CNN ANCHOR: The magic of the election night as you study the demographic is you start seeing what's happening in Pennsylvania. And then that's also happening in Michigan.

CROWD: Lock her up, lock her up.

KING: And then it's also happening in Wisconsin.

UNIDENTIFIED MALE: Vote, baby, vote.

KING: Very similar places where people do the same things, they work the same jobs, have the same median income. The community, you know, is overwhelmingly white, middle class.

Now, we rewriting Americas Electoral College map tonight.

UNIDENTIFIED FEMALE: Trump winning Ohio, Florida and North Carolina.

M. BACA: I was at the watch parties and it became clear that night that Donald Trump was going to win the Electoral College.

UNIDENTIFIED FEMALE: He won. And he reset the map. He blew it up.

BERMAN: It's one thing to win a map, but another to win the most votes. Trump had a clear win in the Electoral College but a significant deficit in actual ballots. Trailing Hillary Clinton by nearly 3 million votes, making it only the fifth time in U.S. history a president has lost the popular vote and still won the presidency.


The very system he derided just four years earlier as a disaster for a democracy, a total sham and a travesty.

TRUMP: I, Donald John Trump.

BERMAN: That system paved his way to the White House.

CROWD: That's my president. That's my president.

BERMAN: A recipe for rancor, resentment and confusion.

UNIDENTIFIED FEMALE: Across the country, you have protests as some people are still furious with the result of the election.

TARA ROSS, AUTHOR, "WHY WE NEED THE ELECTORAL COLLEGE": Clearly there's chaos, sometimes.

CROWD: That's my president.

ROSS: People are angry. It's a huge problem but Americans don't understand the presidential election system. Mostly because where -- there's controversy. Your first instinct is to blame the system, to blame the Electoral College.

BERMAN: This wasn't the first time.

UNIDENTIFIED FEMALE: It appeared Bush had sealed the deal in Florida.

BERMAN: Not even the first time this century.

UNIDENTIFIED FEMALE: But now with only hundreds of votes separating the candidates, a recount is expected.

ALEXANDER: In 2001 in one of the closest presidential contests that we've ever had.

George W. Bush had 271 Electoral College votes. Remember you need 270 to win.


ALEXANDER: Al Gore won the popular vote in that election by about 500,000 votes.

BERMAN: 2.9 million voters in Florida voted for Al Gore. 2.9 million voters voted for the Democratic candidate. What did those votes end up mattering in the presidential election overall?

LAWRENCE LESSIG, PROFESSOR, HARVARD LAW SCHOOL: Zero. He got zero electoral votes from Florida.

BERMAN: And that's because of the Electoral College and it's winner take all system.

UNIDENTIFIED MALE: George Walker Bush has won Florida's 25 electoral votes.

BERMAN: There's this great American notion of one person, one vote. How does the Electoral College system as it stands now align with that?

LESSIG: Well given winner take all it's a grotesque distortion of one person, one vote.

ALEXANDER: We have winner take all in most all states, which means that if you win a state by one vote, you get all of the electoral college votes in that state, which could lead to some pretty strong disproportionate outcomes.

ROSS: Our system is the winner take all which encourages the two party system it can be frustrating.

It was a close election in Florida. And I think the wonderful thing about the Electoral College is that we were able to isolate our election problems to Florida that year.

We argued over hanging chads in a few counties of Florida. Imagine if we had been forced to conduct a national recount because of a close election. That would be a nightmare.

BERMAN: There are others who think the whole system is a nightmare.

LESSIG: So in 2016, 95% of candidate appearances, and 99% of campaign spending happened in just 14 states, the so called Swing States. But the rest of the country, the majority of the country, states like New York, Texas, Oklahoma, Utah, Montana, those -- Kentucky, those states, which are not swing states, they don't matter to the presidential candidate.

BERMAN: And for some, that's a problem, because those 14 states don't always represent 50.

LESSIG: This is a system that systematically says to people, you don't matter, if you don't come from a swing state, and even if you come from a swing state, like Florida, if you don't happen to be in the majority, we're going to count your votes for the purpose of just throwing them away.

ALEXANDER: This comes back to a pretty important question about legitimacy. The fact that somebody can be elected as the president of the United States without winning the popular vote is certainly unsettling to many confusing to many.

TRUMP: Keep America great.

BERMAN: Even more unsettling to some, it could happen again, in even bigger fashion. Donald Trump trailed by almost 3 million votes in 2016. In 2020, he could conceivably trail by even more and still emerge victorious.

KING: I think most people don't think about the Electoral College until something like this happens. You got a ton more votes, and the other guy gets to be president of the United States, paper says that's the rules whether you like him or not.

BERMAN: Micheal Baca was ready to rewrite the rulebook.

M. BACA: When it became clear that she lost the Electoral College vote, I realized that there's still one more opportunity to prevent Donald Trump. It's just not going to be with Secretary Clinton as President. And so, for better or worse I tried Hail Mary.


BERMAN: Coming up, would his plan work? You thought you had the power to change history.


KEEGAN-MICHAEL KEY, COMEDIAN: The Electoral College are a bunch of officials who do the voting for us. So in case we elect the wrong person, they can fix that shits.

JORDAN PEELE, COMEDIAN: Whoa, whoa, whoa, whoa, whoa. Hold up. Who the hell are these people?

KEY: Well, no one knows for sure, But whoever they is, they the folks who actually do the real voting after we do our pretend voting. Yeah!

BERMAN: Comedians Keegan-Michael Key and Jordan Peele were joking, sort of.

PEELE: So this November, we should.

KEY: Yeah. Dunk the vote.

BERMAN: It might not have been exactly what the framers of the Constitution had in mind some 200 years ago, but it's not far off.

ROSS: The founders understood human nature. They understood that everybody's fallible, the states are fallible, the national governments fallible, elected officials are fallible, everybody can be corrupted. And they knew that they needed a system of checks and balances to protect liberty that gets the imperfections of human nature.

BERMAN: So how would they address all these concerns? How would we elect our presidents?

BUSH: So help me God.

UNIDENTIFIED MALE: I congratulate you, sir.

LESSIG: So it bounced around a bunch of ideas, maybe one house of Congress selection or both houses sitting together selecting.

ALEXANDER: They thought about state legislatures or governors selecting the president.

[22:15:01] LESSIG: We thought about the idea of a direct popular vote.

ROSS: The small states were very afraid of a national popular vote. They would not have agreed to it. They knew they would be outvoted by the large states time and time again.

LESSIG: It was a hard problem to solve.

ALEXANDER: They settled on using the representation out of the legislature.

UNIDENTIFIED MALE: Members Electoral College --

ALEXANDER: And then electors to select the president of the United States and that ended up being the Electoral College, it really was a Frankenstein's monster of sorts.

BERMAN: So folks like Alexander Hamilton came up with a system that gives the power to the states to choose the President, think of it as 51 separate elections. But this is where it gets tricky, because when you and I cast our ballots on Election Day, we're not really voting for President. We're actually choosing a slate of electors to vote on our behalf.

These electors make up the Electoral College, and when they get together in December, it's their votes that officially and technically choose the president. Of course, we've all mostly come to assume that they'll vote the way we tell them to.

You're getting all this down. I know it's a lot. So we thought we'd ask some friends of ours to help you understand.

UNIDENTIFIED MALE: Who are the electors? They're the ones who elect, the ones that you vote for. Who will vote in your stead, you signal your choice, you give them your trust but it's up to them, and not up to us. We're only the voters. They are the electors.

In article two of the US constitution, the framers spelled out how the chief executive is chosen. They laid out the rules for elections. They wanted a system that would be free from corruption. The winner would be chosen by an unaligned delegation without partisan affiliation. They're called the electors because they elect. They're like our protectors, adding one extra step. You signal your choice, you give them your trust but it's up to them, and not up to us. We're only the voters. They are the electors.

Every state gets a number of electors that's exactly the same as the number of senators and representatives they claim, plus three added on for D.C. They are the electors all five hundred and thirty eight. They are the electors giving smaller states extra weight. You signal your choice, you give them your trust but it's up to them, and not up to us. We're only the voters. They are the electors.

BERMAN: When you set it to music, it all seems so simple. And maybe it was in 1787.

TRUMP: I am your voice.

BERMAN: But when you consider they never really factored in political parties. They never really imagined actual campaigns. They never even required states to hold actual elections for president. Let's just say this is not your father's Electoral College, certainly not your founding fathers Electoral College.

UNIDENTIFIED MALE: The electoral college that we look at today really is nothing like that of what's the framers put together, winner take all that most states use, the rise of political parties and the obedience of faithful electors really change that body tremendously.

BERMAN: What is a faithful elector, you ask?

UNIDENTIFIED MALE: Please bring forth the certificates of.

BERMAN: Well, let's explain by telling you what or who it is it?

ROSS: James Madison said, I think it's a great thing that these electrodes can vote in accordance with what their constituents want. That's good. We like that. But he also said I find it valuable that they have the ability to step in if there's an emergency and to act with common sense. If there was a really big gap between Election Day and the meetings of the electors and lots of things can happen.

BERMAN: Democratic elector, Micheal Baca.

Did you have a plan for what you would do with Trump one?

M. BACA: Almost definitely thinking about it like --

BERMAN: Baca knew there wasn't a lot of wiggle room as a Colorado elector.

BERMAN: What does the State of Colorado expect with its electors?

M. BACA: Colorado expected to vote for the Democratic nominee, the person who won the popular vote in Colorado. It was merely a suggestion on what electors can do. It wasn't set in stone.


BERMAN: But in their mind it's a sealed deal?

M. BACA: But it's an unconstitutional law.

ALEXANDER: Under current Estate Law, like most other states, electors are bound to support the candidate they're identified with on the ballot. So in Colorado, we don't list electors on the ballot, we list the major parties and their candidates, and it is both understood and expected and required by Colorado law, that electors follow the pledge and they vote for the person they're identified with.

M. BACA: There are some issues.

BERMAN: Coming up, Baca wasn't alone. Other electors in other states shared the same dilemma.

CHIAFALO: It's so often seeing the elector position be ignored and seen only as a prize at the end of a career. And I decided maybe someone should take a stand and truly understand the Electoral College.


BERMAN: A lot of people thought Hillary Clinton was going to win. Where you one of them?

M. BACA: Yeah. And then when it turned into this decisive victory, I realized that we had to do something in the electoral vote.


BERMAN: In 2016, Colorado resident Micheal Baca was one of 538 electors that would cast the official vote for president one month after the general election.

It was literally overnight on election night, when you thought, hey, wait a second here.

M. BACA: 3:43 in the morning, I realized that hey, we needed electors willing to not vote for Donald Trump.

BERMAN: You thought you had the power to change history?

M. BACA: I thought we had the power to prevent a demagogue from taking office. Yes.

BERMAN: But if Baca was going to keep Trump out of office, he would need help.

M. BACA: Me and other elector out of Washington we began talking --

BERMAN: That night?

M. BACA: Yeah.

CHIAFALO: I have a phone call with an elector from Colorado named Micheal Baca. We discuss the situation with Donald Trump when in the general election.

BERMAN: Baca connected with democratic electors, Bret Chiafalo in Washington State and Polly Baca in Colorado, Polly and Michael have the same last name but they are not related.

P. BACA: When Michael approached me to help him, he said, I think we can do something about this. And for me, of course, I was so disturbed by the outcome, you know, of that election.

BERMAN: Chiafalo was also on board with Michael's idea.

CHIAFALO: The internet was exploding, and we were trying to say, hey, there's actual electors here. Alexander Hamilton wrote one of the Federalist Papers, and in there, he states that electors shall stop any candidate who was unqualified, was a demagogue, or is controlled by foreign powers.

BERMAN: So Bret, Polly and Michael started a campaign to convince fellow electors to change their votes.

CHIAFALO: We decided that the only choice to stop Donald Trump vote for a different Republican candidate and convince 37 Republican electors to do the same.

M. BACA: Initially we had called it the moral electors. We were trying to get electors to vote their conscience. And say, hey, these state laws, they're not constitutional.

BERMAN: Moral electors soon became the Hamilton electors.

Why are they called Hamilton electors?

LESSIG: In the spirit of Alexander Hamilton, who explicitly describes the Electoral College as comprised of a body of men who would exercise its discretion to select a president who in their judgment fit the best interests of the nation?

BERMAN: You voted for Hillary Clinton in the election?

M. BACA: Yes, yes.

BERMAN: But after election night, who did you propose the electors vote for?

M. BACA: Governor Kasich from Ohio.

BERMAN: Did you want to become president?

M. BACA: No, but when faced with Donald Trump as the option.

BERMAN: Why not push more Republicans to vote for Hillary?

M. BACA: You weren't going to find Republican electors to not vote for the Republican and give control to a Democrat. You're going to have to give control to a Republican.

BERMAN: You were looking for somebody you might be able to convince some Republican electors to vote for?

M. BACA: Yeah, yeah.

CHIAFALO: When it came down to it, who voted for who didn't really matter, 37 Republicans could vote for a different person each, and the plans still would have been the same.

ALEXANDER: They were trying to find some kind of consensus candidate that could work across the aisle. So they wanted to deny Donald Trump, a majority of Electoral College votes, kick into the House of Representatives, and then have someone like John Kasich, or Colin Powell, become president of the United States as this consensus choice in the House of Representatives.

BERMAN: They needed at least 37 Republican electors, and they had six weeks until the Electoral College would meet on December 19.

Talk to me about the effort to get other electors on board. What does that look like?

M. BACA: Messy. That was complicated. We were the Bad news bears of the political world.

CHIAFALO: Unfortunately, one of the things that happened immediately after the general election is people started flooding their phone numbers, flooding their email boxes, flooding their actual mailboxes with cries to stop Donald Trump.

P. BACA: And we start calling Republicans in, in states where, where we knew there were Republican electors who were not pleased.

M. BACA: That wasn't until I had a phone call with Chris Suprun in Texas. He was the first Republican to come on board.

CHRIS SUPRUN, GOP REPRESENTATIVE ELECTOR: The Electoral College is here to do exactly what I think I'm doing, which is standing up and saying, no.

M. BACA: We got him to do an op-ed in the New York Times. We're hoping that once the first of all we can came on board, others would follow.

BERMAN: That op-ed created momentum.

UNIDENTIFIED FEMALE: Groups opposed to Donald Trump have been trying to convince GOP electors not to vote for the president elect.

BERMAN: This campaign you are on started getting some media attention?

M. BACA: That was definitely like, weird at first.

BERMAN: Weird, but not alone.

UNIDENTIFIED MALE: Republican members of the Electoral College, this message is for you.

BERMAN: A groundswell of support with one resounding message.

UNIDENTIFIED MALE: The Electoral College was created specifically to prevent an unfit candidate from becoming president.


UNIDENTIFIED FEMALE: I'm not asking you to vote for Hillary Clinton.

UNIDENTIFIED MALE: By voting your conscience, you and other brave Republican electors can give the House of Representatives the option to select a qualified candidate for the presidency.

UNIDENTIFIED MALE: I stand with you. UNIDENTIFIED FEMALE: I stand with you.

JOHN BERMAN, CO-ANCHOR, NEW DAY: But sometimes standing with you still means looking behind you.

You got a lot of hate too?


BERMAN: What's that like?

BACA: Unless you have a gun to my head or a knife to my throat, I don't really fear too much. There was definitely concerning enough that I had to contact the FBI.

BERMAN: Do you think it intimidated anyone else you owe?

BACA: A 100 percent. I think people were definitely afraid.

MICHAEL BANERIAN, REPUBLICAN MICHIGAN ELECTOR, 2016: E-mails, Twitter messages, Facebook messages, and unfortunately some of those messages that came through were death threats.

BERMAN: Republican electors Michael Banerian and Chris Suprun said the threats force them to take notice.

CHRIS SUPRUN, REPUBLICAN TEXAS ELECTOR, 2016: There are people who have said hey, we need to hang him by a tree. We need to come to his house.

BANERIAN: I had people saying they're going to put a bullet in the back of my mouth, people sending me pictures of a news saying that they'd get me if I don't do the right thing.

BRET CHIAFALO, DEMOCRATIC WASHINGTON ELECTOR, 2016: Plenty of electors of all stripes got death threats and hate. And it's one of the things that made our jobs a lot harder.

ROBERT ALEXANDER, PROFESSOR, OHIO NORTHERN UNIVERSITY: These are things that none of these people signed up for.

UNIDENTIFIED MALE: This is a book --

BERMAN: Author Robert Alexander has been serving electors for more than 20 years. He's known what the rest of us are just finding out.

ALEXANDER: I had respondents from our survey writing back and saying, I will never serve as an elector again. I received death threats. I received e-mail viruses. People stopped me on the street.

BERMAN: Despite the threats, the faithless electors had faith in what they were doing.

BACA: It scared people because no one's used the Electoral College this way. And so they're like, can we even do this? Is this even right? But I think sometimes you just got to stand up and be willing to fight for your convictions.

BERMAN: Coming up. Did you ever think it was going to work?

BACA: I thought it was definitely going to work.



BERMAN: December 19th, 2016.

BACA: There's a giant rally outside of the state capitol in Denver.

BERMAN: In every state in Washington, D.C., electors like Micheal Baca in Colorado met to cast the official votes for President of the United States.

BACA: I went and talked to the crowd. I gave them updates on, hey, this is what's going on in Maine. This is what's going on -- as the East Coast voted because I was also waiting those results to know is this movement going to work.

POLLY BACA, DEMOCRATIC COLORADO ELECTOR, 2016: That morning, I made some calls. You know, I called around the country to find out if there was a possibility of getting Republicans to not vote for this man and vote for whomever else to prevent him from becoming president.

CHIAFALO: We actually believe we had upwards of 50 people who are seriously considering not voting for Donald Trump. And all we needed was 37.

BERMAN: Would the faithless electors keep Trump out of the White House?

LAWRENCE LESSIG, ATTORNEY: It was clear that there was a number of electors who were considering it and they were not going to act however, unless it was clear that we're going to be more than 37.

BERMAN: Were they afraid of partisan politics or were they afraid of the Constitution?

LESSIG: Well, some of them were afraid of partisan politics, but many of them were afraid of the law. Because in many of these jurisdictions, the law expressly said they had to vote as they pledged.

BERMAN: In Colorado, the Attorney General's Office knew something was happening.

PHIL WEISER, COLORADO ATTORNEY GENERAL: That day, the electors showed up and some of them were asking questions, what if they want to vote for somewhere else? They were told by the Secretary of State, you're not allowed to do that.

P. BACA: And as I made my calls, I realized that we didn't have the votes. We were shy maybe 10 votes. BERMAN: Realizing their chances of stopping a Trump presidency were slim, Polly decided to cast her vote for Clinton.

P. BACA: I love Hillary Clinton. She was the person that I wanted to be president.

BERMAN: While their campaign was coming to an end, a more important battle was just beginning.

UNIDENTIFIED MALE: So now I have the ballots. We have received eight votes for Hillary Clinton for president and one ballot which cannot be received.

BERMAN: Who'd you vote for?

M. BACA: Governor Kasich.

BERMAN: What were you thinking at the moment you wrote the name John Kasich?

M. BACA: Spell it correctly. I've never actually told anyone this but I was going to vote for Evan McMullin, but I didn't want to miss those last name. So I voted for Governor Kasich.

BERMAN: Evan McMullin is a former CIA official who ran as an independent during the 2016 presidential election. John Kasich, the former Republican Governor of Ohio.

WEISER: Our Secretary of State Wayne Williams said to Mr. Baca, if you won't cast a ballot as you're required to do under code of law, I'm going to have to remove you.

BERMAN: And then what happen?

M. BACA: I was removed as an elector and I didn't know what was going to happen.

UNIDENTIFIED MALE: We will ask the electors to nominate a replacement elector so that a ninth vote can be cast. We need an elector who will cast the vote for the person who received the most votes for president in the state of Colorado.

WEISER: When you become an elector, you know the deal. Your name is not on the ballot. You are there on an assignment to vote for the candidate who gets the most votes in Colorado. That's your role. It's ceremonial, mostly. But it's a role. When people sign up for the role, they know what to expect.

BERMAN: Did you think you were committing a crime?

M. BACA: No. No.

UNIDENTIFIED FEMALE: Thank you, Micheal.

UNIDENTIFIED FEMALE: Thank you, Micheal.

UNIDENTIFIED MALE: Thank you, Micheal.

BERMAN: What does Colorado state law say about electors voting their conscience?

LESSIG: So Colorado State law requires an elector to pledge to vote for the candidate of their party.

BERMAN: Further north, a slightly different battle was being waged by Bret Chiafalo into other electors.

UNIDENTIFIED MALE: Ladies and gentlemen, welcome.

CHIAFALO: By the time I was driving down to Olympia, Washington, our state capitol in December, enough states had voted by that time. But we knew our attempt to stop Trump had failed.

UNIDENTIFIED FEMALE: It's been a very long and interesting political cycle this year in Washington and across the country.

KIM WYMAN, WASHINGTON SECRETARY OF STATE: So in 2016, when we convene the electors here in the capital. It was a very big day.


We had a lot of people here, a lot of media here and you could tell that there was a little bit of tension because there was a rumor that some of them were not going to vote for Hillary Clinton.

LEVI GUERRA, WASHINGTON STATE PRESIDENTIAL ELECTOR: I am the electorate from the Fourth Congressional District

CHIAFALO: Levi Guerra, Esther Little Dove John and myself stepped aside and we said, who are we going to vote for? And Levi brought up Colin Powell. We all agreed.

UNIDENTIFIED FEMALE: OK. Now, I want you to read this right here with the votes --

UNIDENTIFIED FEMALE: OK. For the Office of President of the United States, Colin Powell received three votes.

WYMAN: There was a level of I think disbelief turned into frustration that, you know, their candidate won the popular vote but wasn't going to be elected. And they were just trying kind of any last minute move they could to have people change their votes to try to elect someone other than Donald Trump.

BERMAN: Unlikely Colorado, their votes did count, but there were consequences.

CHIAFALO: About a week later, we were fined $1,000.

BERMAN: It was the first time in U.S. history any elector had been fined for casting a different vote than their state's popular vote winner.

So it's a slightly different case here. Their vote wasn't taken away, but they were punished. So why is the law different there?

LESSIG: Well, in both cases, the question is does the state have the power to control through legal means how someone votes?

UNIDENTIFIED MALE: The Electoral College votes --

BERMAN: For today, 32 states plus the District of Columbia have laws requiring electors to pledge their vote for the candidate who wins the popular vote in their state. And if the electors go rogue, well, the punishment is a mixed bag. They can be replaced, fined or their vote simply canceled.

ALEXANDER: The Constitution says nothing about how electors are supposed to vote.

BERMAN: In fact, the 12th Amendment only says the electors shall meet in their respective states, and vote by ballot for president and vice president and not much else.

ALEXANDER: But it stopped short of saying anything about requiring electors to vote specific way.

BERMAN: Polly Baca was a Colorado state legislator for 12 years and she says state laws requiring electors to pledge their vote are unconstitutional.

P. BACA: After Micheal was removed, I was angry. You know, that was just not right. That was illegal. And so I talked to the other electors and three of us decided that we would sue the state.

BERMAN: Polly, Micheal and Robert Nemanich filed a lawsuit against the state of Colorado for removing Micheal as an elector. A federal court ruled against them, but they appealed and won.

P. BACA: The Appeals Court agreed with us that our position was the correct constitutional position. It was at that point that the other side then appealed to the Supreme Court.

BERMAN: The Supreme Court agreed to hear the Colorado case and also show follows case in Washington after a lower Federal Court upheld his $1,000 fine.

Did you yelp? Did you scream? It's a heck of a thing when the Federal Court says you win.

M. BACA: I yelped when the Supreme Court decided to take the case. That was a, oh my goodness. We got a little excited in the middle class and they're like, what's going on? It's fun being able to share that moment with our kids because how many government teachers have been in the Supreme Court while they're teaching? I hope it inspires them to be engaged citizens.

UNIDENTIFIED MALE: It's very clear in the Constitution, the popular vote is not what elects presidents.

BERMAN: Two faithless elector cases, two states, two different results. History was on the doorstep of our nation's highest court. Would their decision open the door for chaos come November?

Coming up.

ALEXANDER: If the Supreme Court does rule and say, no, electors do not have to be obedient, they are free agents and they can do what they wish, that should send a bit of a chill down the spines of many Americans.

WEISER: This is a Pandora's Box, and we are going to be in uncharted territory.


KIM BRUNHUBER, CNN ANCHOR: We have breaking news for you now. U.S. President Donald Trump suffered a great personal loss. He says his younger brother, Robert Trump died Saturday in a New York hospital. So we're going to go right to Correspondent Kristen Holmes in Bedminster, New Jersey.

Kristen, a real blow for the President here. We know his brother had been in ill health for some time. What more can you tell us about Roberts and his passing?

KRISTEN HOLMES, CNN CORRESPONDENT: Well, the White House hasn't given us an actual cause of death right now. But as you said, we didn't know that he had been seriously ill in and out of the hospital since last spring. He was 72 years old. And this came a day after President Trump made an impromptu stop in New York City.

We knew he was coming here to New Jersey. The last minute they announced that he was going to be visiting his brother Robert in a hospital in New York. And he told reporters at that time that hopefully he would be OK but that he was having a really hard time.


Now, he did pass away earlier tonight. And I want to read to you the statement that was released from the White House because this is really the most emotional and touching thing we've heard from President Trump. He said, "It is with a heavy heart I share that my wonderful brother Robert peacefully passed away tonight. He was not just my brother, he was my best friend. He'll be greatly missed, but we will meet again. His memory will live on in my heart. Robert, I love you. Rest in peace".

Again, a very emotional, very simple statement from President Trump. But it clearly goes to show you the relationship that the two of them have. We know that President Trump said that his brother supported his candidacy for President 1,000 percent. His brother had been a top executive at the Trump Organization. So they had a very close relationship.

And recently, as we know, Mary Trump, who is related to President Trump had tried -- has written a book and Robert Trump was the one who put out the restraining order to try and block the book from being published. So clearly working on his brother's behalf, they had a strong relationship.

And again, we are still waiting for some details here as to what exactly happened, what was this illness, but he did pass earlier tonight. And I do want to say that he even talked about his brother the last three days, quite often. Last night, at a police event with the New York police union. He said that his brother loved the police. He's referred to him as how close they are.

And this is a man who doesn't have a lot of very close friends and very close family. He's very particular about who he keeps near him. And it's very clear that his relationship with Robert was something he valued deeply in something he cherished. Kim?

BRUNHUBER: All right. Since -- even though he supported his brother, he was very loyal, very different from Donald Trump. Not flamboyant, he didn't seek the limelight. So what more can you tell him -- tell us about his personality?

HOLMES: Well, he was very behind the scenes. He had a role, as I said at the Trump Organization, but he was never one who tried to steal the limelight from Donald Trump. He always put his brother front and center. One of the iconic pictures of Robert Trump is him hugging his brother at the Republican National Convention in 2016.

Again, he wasn't somebody who was out there doing interviews, the way we see so many associates of President Trump who really want that spotlight themselves. They crave that. We never heard from Robert Trump.

I had a friend of mine who has been following the Trump candidacy very closely who said that he didn't even know that he was a brother of Donald Trump because he just wasn't out there. So, you know, it's an interesting dynamic the two of them clearly had.

BRUNHUBER: All right. Well, thank you very much for that. So once again, Robert Trump, President Trump's brother, dead at 72.

We return now to our CNN Special Report, Counts on Controversy: Inside the Electoral College.

BERMAN: The silence, the rage, election year 2020.

ALEXANDER: A lot of unprecedented things that have occurred. We have no idea yet how the pandemic will play itself out. And certainly the issues that we have seen with race over the summer will likely spill over into the fall. We're thinking about trying to eliminate chaos. Chaos in many ways will be baked in to the 2020 election.

M. BACA: So funny story, I was leaving Colorado after I voted to go spend some time with my family. And I was driving through some small little town in New Mexico and I stopped to get gas and I see on the newspaper in there says, no Hamilton electors here. I'm like I'm in this small little CALPHO (ph) town in the middle of nowhere and here they are talking about the Electoral College.

BERMAN: Former Colorado Elector Micheal Baca did more than just pull into a gas station. When he and fellow elector Bret Chiafalo started the Hamilton electors, they fuelled an argument that had never been settled.

CHIAFALO: That we have the opportunity to get a question answered that should have gotten answered in the last 200 years. How do we actually elect our president? What our electors and what purpose do they serve?

Bret Chiafalo voted for Republican Colin Powell. Micheal Baca voted for Ohio Governor John Kasich. Their idea, to vote for a more moderate Republican instead of the state's popular vote winner to prevent Donald Trump from winning the White House.


Chiafalo's vote counted, Baca's did not. And the plan didn't work. But their decision to vote faithlessly, well, that would linger amid controversy in court filings for four years.

Where this gets really interesting, really complicated and really to be, frank, combustible is what happens if a faithless elector were to shift the outcome of an election?

LESSIG: Yes, that's right. In 2000 election, were two electors switching would have flipped resolved. I think begins a series of elections where we're going to see very close results going forward. So that makes this question much more important in the future.

WEISER: They are playing a very dangerous game. The American people have absolutely come to expect when votes are cast on Election Day. The presidential election is decided. To undo that 220 years of history, we defy expectations and constitutional tradition.

BERMAN: And that's why the Supreme Court added Baca and Chiafalo to its docket.

WEISER: The Supreme Court has never ruled on this. We are going to be in uncharted territory. This is a Pandora's Box.

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Oh, yay. Oh, yay. We will hear argument first this morning in Case 19-465, Chiafalo and others versus the state of Washington.

CHIAFALO: Listening to a Supreme Court case and hearing Justice Ginsburg say my last name was completely surreal.

BERMAN: What's that like, all of a sudden, you realize, hey, wait a second. The guys who wrote the Constitution, they wrote about me.

M. BACA: They didn't write about me, they wrote about the role of the electors. And I think that's what -- that's important that the court is going to address here.

LESSIG: The question in these cases is straightforward, do the states have the power to control through law how an elector may vote? They do not. BERMAN: Larry Lessig was one of four attorneys arguing the Colorado and Washington case is about faithless electors. Historic and unprecedented arguments about bribery and chaos, heard by the Supreme Court, by phone.

SAMUEL ALITO, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Suppose an elector is bribed between the time of the popular vote and the time when the electors vote. Can the state remove that elector?

LESSIG: Your Honor, we believe that prior to the vote, the state's power is to assure that the person who shows up has not engaged in the criminal activity. Of course, the claim someone has been bribed is a charge. It needs to be proven. And so we believe there's going to be a difficulty there with the bribery.

ROBERTS: Thank you, Counsel. General Purcell?

NOAH PURCELL, SOLICITOR GENERAL OF THE STATE OF WASHINGTON: I'm somewhat confused about exactly what their position is on this, but it seems they're saying you cannot remove someone even if you know they accepted a bribe, unless you can somehow move through the criminal process before the electors meet. And that's just absurd.

ALEXANDER: It's a great argument to eliminate elector discretion. However, when asked point blank, can you find a case where an elector has been bribed? The state could find none. And so as a hypothetical, it was very flashy. It was very sensational, but it's something real. It didn't really hold water.

M. BACA: It was rather interesting to hear the questions that the judges asked. They dealt a lot with hypotheticals, whereas, I wish that they dealt with the reality of the case.

BERMAN: On the subject of reality, some of the questions including those from Justice Clarence Thomas, seemed a little out of this world.

CLARENCE THOMAS, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Counsel the elector, who had promised to vote for the winning candidate, could suddenly say, you know, I'm going to vote for Frodo Baggins, and that's -- I'd really like Frodo Baggins. And you're saying, under your system, you can't do anything about that.

JASON HARROW, ATTORNEY: Your Honor, I think there is something to be done because that would be the vote for a non-person, you know, no matter how big a fan many people are of Frodo Baggins.

ALEXANDER: So when Frodo Baggins entered the Supreme Court, of course, you knew that that was going to trend on Twitter, as opposed to faithless electors. And to hear it come from Clarence Thomas was truly special.

CHIAFALO: What stood out the most is the opposition argued mostly about the chaos in my costs, and not on any actual constitutional or legal standing. ALITO: Those who disagree with your arguments say that it would lead to chaos, where the popular vote is close and changing just a few votes would alter the outcome and there would be a long period of uncertainty about who the next president was going to be. Do you deny that that is a good possibility if your argument prevails?

LESSIG: We deny it's a good possibility. We don't deny it's a possibility. And we believe there are risks on either side.

CHIAFALO: We can't make decisions based on whether it's going to cause chaos or not, or else we'd be flipping parts of the Constitution right and left.


M. BACA: (INAUDIBLE) elector's discretion on who they can vote for. This does not equal more chaos. There were great questions, but Justice Kavanaugh, I think, asked one of the most important questions.

BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Good morning, what is the purpose of having electors?

ALEXANDER: There was a bit of silence with that. If we're going to bind electors, we're all they are, are automatons just casting a ballot, then what is their purpose? If it's merely ceremonial, is that something we really want to have in the American electoral process?

BERMAN: Bret Chiafalo and Micheal Baca have been fighting for answers for four years. A fight they want to win, but that's not their ultimate goal.

CHIAFALO: I hope we win. But I've always said through this entire process from day one, I am against the Electoral College. It should not exist. It should be gone as soon as possible.

I'm just simply trying to represent my duties under the Constitution as best I can. And it's the Electoral College that takes away the individuals vote, not the individual electors.

M. BACA: It wasn't my ambition to be an elector. This wasn't about me, this wasn't about my politics, this wasn't about my ideology. I'm just the guy who was trying to do what was best for the country.