The “faithless electors” who defied both a pledge they had made and the will of Washington voters by casting their Electoral College votes for candidates other than Hillary Clinton in 2016 can be fined $1,000, as state law stipulates, the Washington State Supreme Court ruled Thursday.
Four of Washington’s 12 Democratic presidential electors went rogue in 2016, with three casting their votes for former Secretary of State Colin Powell and one casting his vote for Faith Spotted Eagle, an activist in the fight against the Keystone XL Pipeline. All had signed pledges to support Clinton if she won the state’s vote.
State law at the time dictated a $1,000 fine for electors who defied the popular vote, but the four electors challenged the fine, contending that electors are supposed to use independent judgment in casting their ballots and that a state fine infringes on their free speech rights and interferes with a federal electoral process.
A Thurston County Superior Court judge ruled in 2017 that the fines were permissible.
The state Supreme Court, in an 8-1 decision, upheld that ruling.
Writing for the majority, Justice Barbara Madsen wrote that the U.S. Constitution gives states the power to direct how electors to the Electoral College are appointed and that electors act under the authority of the state.
“The power of electors to vote comes from the State, and the elector has no personal right to that vote,” Madsen wrote. Nothing in the Constitution “grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function.”
Writing, alone, in dissent, Justice Steven Gonzalez argued that the nation’s founders intended electors to be free to exercise their judgment.
“The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience,” Gonzalez wrote. “Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.”
Sumeer Singla, a lawyer representing three of the four faithless electors — Bret Chiafalo, Levi Guerra and Esther John — said he still had to talk to his clients, but that they were considering an appeal to the U.S. Supreme Court. They are watching a similar case from Colorado, pending in the 10th Circuit Court of Appeals.
“There is essentially a question of whether or not this is a federal function,” Singla said. “We believe it’s timely, and I think the Supreme Court should clarify what the purpose of the Electoral College is.”
Ultimately, Donald Trump won the election with 304 electoral votes to 227 for Hillary Clinton. Two Republican electors in Texas and a Democratic elector in Hawaii also rejected the voters of their state and cast their electoral votes for others.
The four faithless electors were the first in Washington since 1976, when Mike Padden, now a longtime state legislator, cast his electoral vote for Ronald Reagan instead of Gerald Ford, the incumbent, who carried the state and already had defeated Reagan in the primaries.
Padden’s vote spurred the Legislature to enact the $1,000 fine. Similarly, the four faithless electors in 2016 spurred a further change in state law, passed this year, which requires electors to cast their vote for their party’s nominee. If they fail to do so, their position is considered vacant and an alternate elector is appointed.
In 2016, a federal judge blocked the electors’ efforts to have the fines thrown out. But he noted that despite the fine, their votes were still counted.
“Washington has no law precluding plaintiffs from voting as they choose — and having those votes counted — in the Electoral College,” U.S. District Judge James Robart wrote.
That is no longer the case.