OLYMPIA – Although more than a dozen Democrats may be running for president in 2020 – including its governor –Washington still has some unfinished legal business from the 2016 election, which the state Supreme Court tackled Tuesday.
Three members of the Washington Electoral College in that last election asked the court to void the $1,000 fine the state charged them for breaking their pledge and voting for someone other than Democratic nominee Hillary Clinton, who won the most votes in the state.
Peter Chiafalo, Levi Guerra and Esther John signed those pledges when they became electors but after Clinton won the state, cast electoral votes for Colin Powell. They now argue the state can’t fine them for changing their minds any more than it could fine a voter for changing his or her mind at the ballot box.
“The question was not whether they were right (to switch). The question is whether they had the right,” attorney Lawrence Lessig argued in the hearing. “An elector is a chooser,” he said, not a mere robot or clerk.
But Deputy State Attorney General Callie Castillo said presidential electors aren’t like regular voters. Electors act on behalf of the state, representing the will of the state’s voters.
“There is no First Amendment right to cast a ballot any way they see fit,” Castillo said.
After Clinton won Washington state and the popular vote nationwide in November 2016, but Donald Trump was in line to receive the most Electoral College votes and become president, some electors around the country began talking about ways to affect the results.
Chiafalo, who supported Democrat Bernie Sanders during the primary process but signed the pledge to vote for Clinton after he was named an elector during the state Democratic convention, became part of a group calling itself the Hamilton Electors. They said they were willing to vote for someone other than Clinton if enough Republican electors in other states would vote for someone other than Trump. Without a majority for either candidate in the Electoral College, the election would have been sent to the U.S. House of Representatives.
The Hamilton Electors never rounded up Republican support to keep Trump from becoming president. When the Washington Electoral College met in December, Chiafalo, Guerra and John voted for Powell. A fourth elector voted for Faith Spotted Eagle to draw attention to the dispute over the Dakota Access Pipeline. All four were fined $1,000, the maximum under state law, by the secretary of state for breaking their pledge. The three Powell voters appealed, losing at both an administrative law procedure and in Thurston County Superior Court.
On Monday, the justices wrestled with both sides of the issue. Chief Justice Mary Fairhurst told Lessig she believes state law doesn’t stop electors from changing their vote. It just says there’s a consequence if they do.
But it’s a consequence for exercising their choice, he replied, and an elector should be free to choose. A president doesn’t have the power to regulate what judges do after he appoints them, Lessig added.
But unlike electors, judges aren’t pledging to go with the will of the people, Justice Sheryl McCloud countered. They pledge to be fair, she said.
Isn’t what the three electors did a bit like jury nullification, where a juror decides to ignore the judge’s instructions about the laws, Justice Steven Gonzalez asked. It’s precisely like that, Lessig replied.
But there are penalties for jurors who say they’ll follow the law during jury selection process and then don’t, Gonzalez said. Only if there’s evidence they were lying during jury selection, Lessig countered; the electors intended to vote for the nominee when they signed their pledge and only changed their minds later.
Overturning the fines would be like saying the state has no right to put conditions on electors, Castillo said.
But what if the nominee died between the election and the Electoral College meeting, Gonzalez asked. Would the state still fine an elector $1,000 for casting a ballot for another candidate?
It would be for the elector to decide what to do and the secretary of state could issue a fine, but wouldn’t have to, Castillo said. The statute says the fine can be “up to $1,000,” so it could be as low as nothing.
“I would hope our government would exercise discretion and not fine them,” Castillo said.
The court is expected to rule on the case in the coming months.
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter.