The U.S. Supreme Court said Friday it will hear the case of Washington’s four “faithless electors” who went rogue in 2016, defying both a pledge they had made and the will of Washington voters, by casting their Electoral College votes for candidates other than Hillary Clinton.
The state Supreme Court ruled last year the four each could be fined $1,000, as authorized under state law, for turning their back on the state’s popular vote. But a few months later, a federal appeals court, considering a faithless elector in Colorado, ruled that states do not have the power to interfere with an elector’s choice, no matter what state voters decided.
Now the U.S. Supreme Court will decide the matter, weighing in before the 2020 election on whether states can punish or replace electors who disregard the will of their states’ voters.
In 2016, four of Washington’s 12 Democratic presidential electors did just that, declining to cast their votes for Clinton. Three cast their votes for former Secretary of State Colin Powell and one cast 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.
They were fined $1,000, according to state law. But three of the electors — Levi Guerra, Esther John and Peter Bret Chiafalo — appealed, arguing 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.
The state Supreme Court, in an 8-1 ruling, ultimately disagreed, finding, “The power of electors to vote comes from the State, and the elector has no personal right to that vote.”
Following the 2016 election, the Washington Legislature went further than just the fines in using that power, passing a law that 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.
Twenty-eight other states and the District of Columbia have similar laws that attempt to bind the votes of electors to the vote of the people, according to the National Conference of State Legislatures.
Those laws, and the one in Washington, are presumably in jeopardy, depending on how the U.S. Supreme Court rules.
“They had a full right to select, as an elector, the president that they deemed was appropriate,” said Sumeer Singla, a Seattle lawyer representing the three Washington electors. “We are hopeful that the court’s going to actually decide the role of the Electoral College.”
“The fines in this case are the very first imposed on any presidential elector in the history of the Republic,” lawyers for Guerra, John and Chiafalo wrote, in asking the U.S. Supreme Court to take the case. But, they say, they’re not the first electors to go rogue. “Indeed, from the birth of the Republic, electors have cast their ballots contrary to legislative direction or expectation without penalty or legal consequence.”
They argued the split with the appeals court in the Colorado case made it imperative for the U.S. Supreme Court to settle the matter.
In that case, the U.S. Court of Appeals for the 10th Circuit found the Constitution “does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote or to appoint a new elector to cast a replacement vote.”
Chiafalo, in a joint statement with Michael Baca, the faithless elector in Colorado, said he was thrilled the Supreme Court accepted the case.
“The states had no power to penalize us merely for exercising our right to vote,” he said.
While the faithless electors didn’t affect the ultimate outcome of the 2016 election, they argued they could come into play in a future election and the Supreme Court should settle the matter.
“It is possible that a presidential election could turn on just a few disputed electoral votes cast in purported violation of state law,” lawyers for Guerra, John and Chiafalo wrote to the court. “It is not entirely clear how that would play out — but there is a very real risk of substantial unrest, or worse, if that does happen.”
Attorney General Bob Ferguson, representing the state of Washington, argued the opposite — that hearing the case and ruling in favor of the faithless electors makes a constitutional crisis far more likely.
“Holding that electors have a constitutional right to vote however they wish,” Ferguson wrote, “would mean that only 538 Americans — members of the Electoral College — have a say in who should be President; everything else is simply advisory.”
Material from The Washington Post was included in this report.