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@rentonreporter.com.

To share your opinion for publication, submit a letter through our website https://www.rentonreporter.com/submit-letter/. Include your name, address and daytime phone number. (We’ll only publish your name and hometown.) Please keep letters to 300 words or less.

More in News

Virtual town halls coming up for unincorporated King County

Events throughout September and October via Zoom will cater to different areas of the region.

A vacant building that went up in flames Aug. 27 at the corner of Pacific Highway S. and S. 279th St. in Federal Way. Fire investigators declared the blaze to be an arson. Photo courtesy of South King Fire Commissioner Bill Fuller
Renton man possibly connected to Federal Way arsons

Officers found several lighters and butane fuel in his possession while arresting the man on Aug. 28.

Stock photo
Renton woman pleads guilty to purchasing firearms for ‘violent street gangs’

According to case records, a 41-year-old Renton woman provided the guns to her son, who modified them and sold them to gang members

Seven decades later, the search for two missing Navy pilots continues

The pilots are thought to have disappeared near Black Lake, northeast of North Bend.

A view of the Palmer Fire, located seven miles southwest of Oroville in north central Washington. Source: InciWeb
Antifa isn’t starting Washington wildfires

Online conspiracy theories are spreading as the West Coast burns.

Courtesy King County Metro.
Metro bus route changes in Renton coming Sept. 19

As part of a plan to increase mobility between several South King County cities, Metro has added a new route and increased the frequency of other routes.

The truck of the Renton family as it was found Tuesday. While fleeing the Cold Springs Fire two adults were severely burned and one toddler died. Courtesy photo/Okanogan Sheriff’s Office
Toddler killed as Renton family flees Cold Springs Fire

The parents were severely burned and are being treated at Harborview Medical Center

A plane drops fire retardant on the Palmer Mountain Fire last week. The fire is listed as 84 percent contained, and fully lined. Laura Knowlton/Sound Publishing staff photo
Threat multiplier: How climate change, coronavirus and weather are scorching WA

Dry summer conspired with the pandemic and a wind storm.

Screenshot from the state Employment Security Department’s website at esd.wa.gov.
Workers may qualify for an extra $1,500 in unemployment back pay

A federal program will give some of the state’s unemployed a $300 weekly bump for the past five weeks.

I-5 closures near Federal Way this week for Sound Transit construction

Two lanes of I-5 will be closed overnight Sept. 9 and 10.

Screenshot of the air quality monitor at 11 a.m., Tuesday, Sept. 8. Courtesy Puget Sound Clean Air Agency.
King County faces unhealthy air quality due to wildfire smoke

Weather monitors recommend people limit time outdoors, especially children, seniors and those with heart or lung disease.