In late 2016, Washington presidential elector Peter Chiafalo had a plan to keep Donald Trump from becoming president by getting other electors around the country to vote for someone other than the winner of their state’s election.
It didn’t work – obviously – but it generated a constitutional legal dispute that has lasted almost as long as Trump’s presidential term.
The dispute landed in the U.S. Supreme Court on Wednesday, which tried to weigh whether removing any state limits on so-called faithless electors is what the Founding Fathers intended or is something that could lead to chaos in a close election.
The justices seemed to lean toward the latter and to favor allowing states to curb electors’ rights to vote against the will of voters.
Chiafalo’s attorney, Lawrence Lessig, said there are almost no circumstances for which a state could remove electors or sanction them for not casting a ballot for their state’s winner.
What about bribery? Justice Samuel Alito asked.
That would be difficult because it would require a conviction in a fairly short span of time, not just an allegation, Lessig said.
Couldn’t such an interpretation of the elector provision in the Constitution “lead to chaos in an election where the popular vote is close and changing just a few votes would either change the outcome or throw it into the House of Representatives?” Alito asked. The losing party could launch a massive campaign to change electors’ votes and there could be a long period of uncertainty over who would be the next president.
“Do you deny that is a good possibility if your argument prevails?” he asked.
“We deny it’s a good possibility. We don’t deny it’s a possibility,” Lessig replied.
In a related case involving a Colorado elector removed for not casting a vote for Clinton, Chief Justice John Roberts asked Jason Harrow, the elector’s attorney, if their votes have any limits.
“No limits so long as they vote for a person,” Harrow replied.
“Not a giraffe? Of course they have to vote for a person,” Roberts said.
Harrow said he meant a living person. In 1872, Democratic nominee Horace Greeley died before the Electoral College met and his votes were cast for others, he said.
Justice Clarence Thomas said that suggests there are no consequences for breaking a pledge. “They could vote for Frodo Baggins and you can’t do anything about that,” he said, referring to a hobbit in “The Lord of the Rings.”
“That would be a vote for a non-person,” Harrow countered.
When the Electoral College met in December 2016, Washington had a law that said any presidential elector who didn’t vote for the winner of the state’s popular vote could be fined $1,000. The law had been passed in 1977, after a Republican elector the previous year had voted for Ronald Reagan, rather than Gerald Ford, the winner of the state’s popular vote in that election.
That elector was Mike Padden, who went on to become a state representative and district court judge and who is now a state senator. Padden has argued that he wasn’t a faithless elector, merely an elector who was ahead of his time, considering Reagan won the state’s and nation’s popular vote in 1980 and became a two-term president.
No Washington elector failed to vote for the winner of the state’s presidential election until 2016. Under state law, electors are selected at the state party conventions and are pledged to the party’s nominee.
Chiafalo was a delegate to the state Democratic Convention, but he was a Bernie Sanders supporter. When Hillary Clinton didn’t win enough states to have the Electoral College votes to become president, Chiafalo said he was part of a movement labeled Hamilton Electors – after Alexander Hamilton, a Founding Father gaining new acclaim thanks to a recent Broadway musical – to convince enough electors to switch their votes so no one would have the votes to be declared president and the race would be decided by the House of Representatives.
Few Trump electors were willing to join the movement. When the Washington Electoral College met on Dec. 19, Chiafolo, along with Levi Guerra and Esther John, voted for former Gen. Colin Powell, while Robert Satiacum voted for Faith Spotted Eagle, a leader of the protest against the Dakota Access pipeline.
They were fined $1,000 by Washington Secretary of State Kim Wyman. Satiacum eventually paid, the other three appealed, losing in the Superior and state Supreme Courts before going to the U.S Supreme Court.
Lessig’s argument Wednesday echoed his stance before the Washington Supreme Court: Electors are allowed to use their judgment in how they cast their ballot for president, and there’s nothing in the U.S. Constitution that allows the state to restrict them to the winner of the popular vote or punish them for casting a ballot for someone else.
The pledge to support the party’s winner in the state election is a moral obligation, not a legal one, Lessig argued, and even a $1 fine “crosses the line.”
“It’s hard to understand the concept of something I’ve pledged, bound to do … but that promise is unenforceable,” Justice Ruth Bader Ginsburg said.
“Every single political pledge is of that character,” Lessig countered. Members of Congress can’t be fined or removed for voting against a campaign pledge.
Washington Solictor General Noah Purcell argued nothing in the Constitution restricts the state’s authority to appoint electors and the power to remove them is included in the power to appoint. States have had the power to remove electors almost from the beginning of the republic, he said, and they can replace an elector who is not present for the Electoral College meeting.
If the Framers wanted to give states the power to restrict electors, why didn’t they put that in the Constituition along with restrictions against electors being members of the Senate or the House? Justice Brett Kavanaugh asked.
The Framers weren’t in complete agreement on the Electoral College, Purcell said, but “they did not want Congress to choose the president.”
The two cases are among a handful the high court is hearing through a telephone hookup among the justices and the attorneys in the case.
Decisions are expected later this year, although Washington has since changed its faithless elector statute to remove the $1,000 fine and require any elector who won’t vote for the winner of the state’s popular vote to be replaced with an alternate who will.
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