Democratic electors and state officials pose for a photo after a meeting of the state’s Electoral College in December 2016. Seated, from left, are Dan Carpita, Varisha Khan, Phillip Tyler, Julie Johnson, Elizabeth Caldwell and Levi Guerra. Standing, from left, are Esther John, Ryleigh Ivey, Robert Satiacum, Gov. Jay Inslee, Secretary of State Kim Wyman, Chris Porter, Eric Herde and Bret Chiafalo. Chiafalo, of Everett, along with John and Guerra did not cast their votes in the Electoral College for Democratic candidate Hillary Clinton, who won the state’s popular vote. (AP Photo/Elaine Thompson, file)

Democratic electors and state officials pose for a photo after a meeting of the state’s Electoral College in December 2016. Seated, from left, are Dan Carpita, Varisha Khan, Phillip Tyler, Julie Johnson, Elizabeth Caldwell and Levi Guerra. Standing, from left, are Esther John, Ryleigh Ivey, Robert Satiacum, Gov. Jay Inslee, Secretary of State Kim Wyman, Chris Porter, Eric Herde and Bret Chiafalo. Chiafalo, of Everett, along with John and Guerra did not cast their votes in the Electoral College for Democratic candidate Hillary Clinton, who won the state’s popular vote. (AP Photo/Elaine Thompson, file)

Supreme Court ponders state’s limits on presidential electors

Justices consider cases in which three Washington state residents went rogue and didn’t vote for Clinton.

WASHINGTON, D.C. — U.S. Supreme Court justices wrangled May 13 with whether states can penalize presidential electors who vote their conscience rather than party, and the potential political consequences if they cannot.

They heard arguments in a case of three Washington state residents who went rogue in 2016 by breaking their pledge to cast their Electoral College votes for Democratic candidate Hillary Clinton, who won the state’s popular vote.

The trio contend electors can, under the Constitution, back the candidate of their choice. But the Secretary of State ruled otherwise and fined each $1,000. Washington’s Supreme Court upheld the fines in 2019.

“Do the states have the power to control through law how an elector may vote? They do not,” said Lawrence Lessig, attorney for the three electors. “The states get to appoint, no doubt, but they appoint electors who are then privileged to cast their votes without regulation by the state.”

It’s not an “unfettered discretion” as attorneys for the state have argued, he said. It is “a completely fettered discretion, just fettered by moral and political obligations, not by legal constraint.”

Justices wrestled throughout the hearing — and a subsequent one regarding punishment of three faithless electors in Colorado — with the breadth of electors’ discretion and states’ enforcement powers under the constitutionally established process of selecting a president.

“It’s somewhat hard to understand the concept of something I am pledged, bound to do, I have made a promise to do something, but that promise is unenforceable,” said Justice Ruth Bader Ginsburg.

To which Lessig responded: “A pledge is always and only a moral obligation.”

At times, justices sounded vexed at Lessig’s argument that electors could not be removed for something as serious as accepting a bribe or acting on behalf of a foreign government unless such allegations lead to charges and conviction before the Electoral College convened.

And several justices raised a concern of states and political parties — that allowing every presidential elector limitless freedom would sow chaos.

If the popular vote is close, and changing a few electoral votes could alter the outcome, “the rational response of the losing political party … would be to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next President was going to be,” said Justice Samuel Alito. “Do you deny that that is a — a good possibility?”

A possibility, yes, Lessig said. “We deny that it is a good possibility.”

Later, in response to a question from Justice Brett Kavanaugh, he said, “you might worry that there’s an increased risk of ‘chaos’ if electors have the discretion we believe they’ve always had.”

That likelihood is tiny “given it requires electors who are the loyal of the loyal to band together in dozens or, you know, three dozen in the last election and flip sides. And, of course, the likelihood of that is extremely small.”

If justices side with the faithless electors, it could inject a degree of havoc and uncertainty when the Electoral College convenes in December to formally select the next president. And it could energize a movement that wants to require that U.S. presidents be elected based on results of the popular vote nationally, not ballots cast by members of the Electoral College.

Bret Chiafalo of Everett, Levi Guerra of Warden and Esther John of Seattle signed pledges to cast their votes for the party’s nominee, Clinton, if she won the popular vote in Washington, which she did. In Washington, Clinton received about 521,000 more votes than Donald Trump. Nationally, she received about 2.8 million more votes.

Solicitor General Noah Purcell, representing the state of Washington, argued that the Constitution gives states the power to appoint electors and enforce conditions for that appointment with sanctions like a fine or removal. It’s not that electors cannot have discretion, he argued. Rather, states set the parameters.

He called “absurd” the argument a state could not remove an elector even if it knew they had accepted a bribe, unless the criminal process had been completed. And he dismissed Lessig’s contention that framers of the Constitution envisioned electors acting as free agents as “academic theory.”

Justice Elena Kagan pushed back on Purcell’s argument that the state’s power to appoint also conveys authority to remove.

“What your argument is, is that the Constitution doesn’t say and … if the Constitution doesn’t say, we should presume that states were meant to decide?” she said.

A ruling is expected by the end of the court’s term in early summer.


Talk to us

Please share your story tips by emailing editor@seattleweekly.com.

More in News & Comment

Patti Cole-Tindall (Courtesy of King County)
Patti Cole-Tindall is officially confirmed as the new King County Sheriff

After serving as the interim sheriff since January, the King County Council… Continue reading

World War II veterans in Auburn, Wash. File photo
Washington ranks 7th among states for number of World War II veterans

12,364 WWII veterans are living in the state, with a total population of 517,912 military veterans.

Photo of promotional recruitment banner used by Auburn Police Department at Petpalooza. The banner features Auburn Police Officer Jeff Nelson, who is awaiting trial for the 2019 murder and assault of Jesse Sarey. Photo courtesy of Jeff Trimble
Auburn police use photo of embattled officer on recruitment banner

Families of people killed by Jeffrey Nelson, who’s awaiting trial for murder, speak out over use of his photo at Petpalooza.

T
Use your King County library card to explore the outdoors

KCLS cardholders can check out a Discover Pass for two weeks to explore public lands.

Monkeypox virus. Photo courtesy of the Centers for Disease Control.
King County identifies first presumptive monkeypox case

The illness is not as easily transmitted compared to COVID-19, according to health officer.

This screenshot from Auburn Police Department bodycam footage shows an officer about to fire his weapon and kill dog on May 13, 2022.
Auburn police shoot dog, and owner claims it wasn’t justified

See videos of attack as well as bodycam footage of officer firing at dog.

File photo.
King County Council approves creation of Cannabis Safety Taskforce amid rash of dispensary robberies

The multi-agency task force will cooperate to find ways to improve safety in the cash-only industry.

Screenshot from ORCA website
New ORCA system launches for regional transit across the Puget Sound

Overhaul includes new website, mobile application and digital business account manager.

Most Read