OLYMPIA – Washington had the power to fine three members of its 2016 Electoral College who cast a vote for someone other than Hillary Clinton, the state Supreme Court said Thursday.
In an 8-1 decision, the court rejected the appeals of three so-called faithless electors – Democrats who cast votes for Colin Powell as part of a failed plan to deny Donald Trump the presidency and throw the election into the House of Representatives.
State law says any elector who does not cast a ballot for the winner of the Washington presidential contest can be fined up to $1,000. Levi Guerra, Esther John and Peter Chiafalo appealed their fines, arguing the state was violating their First Amendment rights and violating provisions of the U.S. Constitution that established the Electoral College.
The large majority of the Washington Supreme Court, in a decision that discusses the Founding Fathers, the Federalist Papers, the election of 1800 and cases dating back to the 19th century, rejected that claim.
“The Constitution explicitly confers broad authority on the states to dictate the manner and mode of appointing presidential electors,” Justice Barbara Madsen wrote in the majority opinion. “The power of electors to vote comes from the state, and the elector has no personal right to that role.”
When the electors sought their party’s election, they were seeking a post that was subject to rules and limitations, Madsen said, and could have avoided the penalty by stepping down.
“No First Amendment right is violated when a state imposes a fine based on an elector’s violation of his pledge,” the majority concluded.
Justice Stephen Gonzalez disagreed, citing a dissent in a 1952 case involving electors that noted the Founders’ original intent, based on the historical record, was for electors to be “free agents” who could exercise their judgment of who was best qualified to be president and vice president.
The Constitution gives the state the power to set up the means to appoint electors but not fine them, Gonzalez said.
“There is a meaningful difference between the power to appoint and the power to control,” he added. “The state cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.”
The state’s faithless elector law, as it is called, was passed in 1977 after Mike Padden, a Republican elector, cast his vote the previous year for Ronald Reagan instead of Gerald Ford, the GOP nominee who carried Washington state although Democrat Jimmy Carter won the national election. But it was never invoked until 2016, because no elector had failed to cast a vote for their party’s nominee.
Guerra, John and Chiafalo were part of a group that called themselves “Hamilton electors,” who tried to convince Republican electors in other states to switch their vote away from Trump in exchange for not voting for Clinton and Democratic Vice President nominee Tim Kaine.
If at least 37 Republican electors switched votes, the decision on the president would be thrown into the U.S. House of Representatives. But only two Republican electors voted for someone other than Trump.
A fourth Washington elector, Robert Satiacum, voted for Native American activist Faith Spotted Eagle to highlight the protests over a pipeline in the Dakotas. He didn’t join the appeal of the fines.
Although the court ruled the state can fine faithless electors, in the future they won’t be. The Legislature changed the statute earlier this year to require any elector who doesn’t cast a vote for his or her party’s nominee to be replaced by an alternate, who is chosen by the party at the same meeting as the electors.
The fine will be repealed as of July 28. After that, the only monetary penalty will be that a faithless elector won’t receive a per diem and travel expenses for the trip to Olympia, where the Electoral College meets every December after a presidential election.
Padden, who is now a state senator, voted against that bill when it passed the Senate. The state didn’t need a new law, he argued, the parties just need to do a better job of selecting their electors who will cast a ballot for the nominee.
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