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Spokane, Washington  Est. May 19, 1883

‘Faithless’ electors can be fined, U.S. Supreme Court says

The U.S. Supreme Court is seen Tuesday, June 30, 2020 in Washington.  (Manuel Balce Ceneta)

Three presidential electors in Washington who refused to vote for Hillary Clinton after she carried the state in the 2016 election can be fined $1,000, the U.S. Supreme Court ruled Monday.

In a unanimous decision, the nation’s highest court upheld Washington’s “faithless elector” law in effect at the time, which penalizes people sent to the Electoral College by the state’s political parties if they cast their vote for someone other than the state’s winner.

The decision, which explores the history of the Electoral College with a few asides to modern culture, was the last appeal for Peter Chiafalo, Levi Guerra and Esther John, whose failed effort to keep Donald Trump from becoming president fizzled nearly four years ago.

“The Constitution’s text and the nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee – and the state voters’ choice – for president,” Justice Elena Kagan wrote in the majority opinion signed by seven others. Justice Clarence Thomas wrote a concurring opinion.

The Constitution gives the states the power to appoint electors, and nothing in it says a state can’t enforce an elector’s pledge with a penalty or taking it away as a condition of that appointment, she wrote.

The three electors had claimed the Founding Fathers meant for people sent to the Electoral College to exercise their discretion in picking a president.

“The Constitution is barebones about electors,” Kagan wrote. “The electors’ claim has neither text nor history on its side.”

An executive with the Campaign Legal Center said in a news release that the decision should give voters confidence that the political system would be free from corruption.

“However far from perfect the current system may be, the chaos of an unbounded Electoral College would have been even worse,” said Paul Smith, the center’s vice president for litigation and strategy.

Lawrence Lessig, one of the attorneys who argued the electors should not have been bound to vote for Clinton, said the ruling removed “one uncertainty about the Electoral College.” A group he represents, Equal Citizen, will begin discussions to identify fixes to the system that a majority of Americans can support, he said.

After the 2016 election, the three electors said they had a plan to persuade enough Trump electors in other states to switch their votes to another candidate so that neither Clinton nor Trump would have a majority in the Electoral College. The outcome of the election would then be up to the House of Representatives.

The plan failed, with only seven electors nationwide agreeing to change their votes. Chiafalo, Guerra and John voted for former Gen. Colin Powell, and a fourth elector in Washington voted for Faith Spotted Eagle, the leader of the protest against a pipeline in South Dakota.

At the time, Washington had a law that allowed the secretary of state to fine any elector who didn’t vote for the winner of the state’s presidential election $1,000. It was passed in the late 1970s, after a Republican faithless elector, Mike Padden, voted for Ronald Reagan in 1976 even though Gerald Ford won the state in the balloting for president.

There was no penalty then. Padden later served as a Spokane County District Court judge and was elected to the state House of Representatives. He is currently the state senator for the 4th Legislative District representing Spokane Valley.

Washington Secretary of State Kim Wyman fined the four faithless electors in the 2016 election $1,000, and Chiafalo, Guerra and John appealed, first through an administrative process and later through state courts. They lost at every step, including at the state Supreme Court, before taking the constitutional question to the U.S. Supreme Court.

Kagan’s opinion examines the history behind the Electoral College, first described in Article 2, Section 1 of the U.S. Constitution.

“Begin at the beginning,” she writes, noting electors originally cast two votes for president; the winner got the top spot and the runner up was vice president. In 1796, that meant President John Adams was from one party and Vice President Thomas Jefferson was from a different party.

“One might think of this as fodder for a new season of ‘Veep,’ ” Kagan wrote.

Four years later, the electors cast an equal number of ballots for Jefferson and Aaron Burr, throwing the race into the House of Representatives, which needed 36 ballots to elect Jefferson.

“Alexander Hamilton secured his place on the Broadway stage – but possibly in the cemetery too – by lobbying Federalists in the House to tip the election to Jefferson, whom he loathed but viewed as less of an existential threat to the Republic,” she wrote, a reference to the hit musical “Hamilton” and the fact that Burr later killed Hamilton in a duel over something else.

That led to the 12th Amendment, that requires electors to cast separate votes for president and vice president, which was in line with the nation’s party system.

By the 20th century, most voters in most states voted for the candidates themselves on ballots that didn’t even list electors, she wrote. States expected electors chosen by the political parties to vote for that party’s winning candidate. About 60 years ago, some states started imposing sanctions for electors who didn’t, including fines like Washington had.

“The state instructs its electors that they have no ground for reversing the vote of millions of its citizens,” Kagan wrote. “That direction accords with the constitution – as well as with the trust of the nation that here, We the People, rule.”

Justice Thomas agreed that a state’s ability to fine electors was constitutional, but on different grounds. The majority was reading too much into the original and amended language about the Electoral College as giving states the right to pass such laws, he wrote. Instead, that power is granted through the 10th Amendment, which reserves all powers to the states that aren’t specifically enumerated for the federal government, he wrote.

The result is the same. But for Washington, the constitutionality of fines for faithless electors later this year and in future presidential elections may be moot.

After the 2016 election, the Legislature changed the state’s faithless elector law, removing the fine but requiring any elector who does not cast a vote for the winner of the state’s presidential election to be removed and replaced with an alternate who would vote for the winner.