When it came time Wednesday for Colorado Attorney General Phil Weiser to make his first-ever arguments before the U.S. Supreme Court, he stood up, straightened his suit and tie and launched into legal debate.
But instead of making his remarks before the justices in a Washington, D.C., courtroom, Weiser was in a nondescript conference room in his downtown Denver office building, addressing them over a speakerphone in a conference call. He stood at a lectern brought in for the occasion.
Weiser’s arguments before the Supreme Court in Colorado’s effort to prevent how the U.S. elects presidents from being dramatically altered were historic.
The court had not, until the coronavirus crisis, heard case arguments by phone or live-streamed arguments.
Weiser was flanked by his top deputies furiously scribbling notes, but they were each at least 6 feet away, wearing masks and sitting at tables arranged in a long rectangle. One held up a piece of paper warning him of his time limitations.
And Weiser used the odd, coronavirus-driven situation to make himself comfortable: He brought a large Starbucks iced tea and a baseball with phrases from the Constitution and Declaration of Independence written on it. He also had a pocket version of the U.S. Constitution that he referenced several times.
Weiser gestured as he made his arguments, staring out of an eighth-floor window at Denver’s skyline. Sirens from emergency vehicles interrupted the conference call at times. What was he looking at and thinking as he spoke before the nation’s highest court?
“I was sort of Zen,” he said. “Sort of outside of a physical space.”
Weiser’s son, Sammy, and wife, Heidi Wald, were present for the arguments. Wald got up to take photos of her husband throughout the hour-long proceedings. Weiser’s iced tea was slowly drained as the arguments went on.
Weiser said he practiced making his arguments seven times over conference calls before Wednesday. He was worried he would sound too fast since he was arguing over the phone and not in person, so he worked on slowing himself down.
“Obviously, not seeing the body language is a huge challenge,” Weiser told reporters after the proceedings.
The 10 people in attendance for the arguments, including a Colorado Sun reporter and Denver Post photographer, were wearing masks and spaced apart from each other.
Weiser’s deputies who were present for the arguments were:
- Eric Olson, Colorado’s solicitor general
- Grant Sullivan, Colorado’s assistant solicitor general
- Natalie Hanlon Leh, Colorado’s chief deputy attorney general
- Anna Noschese, Weiser’s executive assistant
- Lawrence Pacheco, Weiser’s spokesman
When the proceedings ended, Weiser embraced his wife, and members of his staff gave him a round of applause. He noted that because his closing remarks came at the end of the Supreme Court’s spring term, he got the last word.
“I have the last word of this term,” he said. “I did not realize that.”
He added: “This was an incredible honor.”
Wald also brought her husband a cake to celebrate the occasion. It was white with the scales of justice drawn in black icing.
The case Weiser was arguing stems from the 2016 presidential election, when one of Colorado’s nine presidential electors, Micheal Baca, attempted to cast his Electoral College ballot for Republican John Kasich, then Ohio’s governor, instead of Democrat Hillary Clinton, who won Colorado’s presidential election over Republican Donald Trump.
Baca, in backing Kasich, was attempting to deny Trump the presidency by joining with other presidential electors across the nation in an act of defiance.
However then-Colorado Secretary of State Wayne Williams, a Republican, removed Baca as an elector since Colorado, like 31 other states and the District of Columbia, has a law binding presidential electors to vote for the candidate who wins the state’s presidential election popular vote.
Baca sued, and the Denver-based 10th U.S. Circuit Court of Appeals ruled that Baca’s removal was unconstitutional. The case then made its way to the Supreme Court.
Two other Colorado presidential electors in 2016 — Polly Baca (she isn’t related to Micheal) and Robert Nemanich — intended to follow Baca’s lead but ultimately did not. They, too, are part of the case.
Wednesday marked Weiser’s first time arguing before the Supreme Court. He served as a clerk for Justice Ruth Bader Ginsburg, who sent him a congratulatory video message when he was sworn into office in January 2017.
The tie Weiser wore as he made his arguments was given to him by the late Supreme Court Justice Byron White, a Colorado native. Weiser also clerked for White.
Weiser, a Democrat, is friends with Lawrence Lessig, a Harvard Law professor who founded Equal Citizens, the organization representing Micheal Baca.
Justice Sonia Sotomayor recused herself from Colorado’s case because she is friends with Polly Baca, who is a former Democratic state lawmaker.
The Supreme Court on Wednesday also heard a companion case out of Washington state in which the Washington Supreme Court upheld $1,000 fines for three presidential electors there who also tried to block Trump from becoming president by disregarding the will of voters and backing Colin Powell, the former U.S. secretary of state. Lessig is also representing the electors in the Washington case.
A decision in the cases is expected this summer.