Supreme Court asked to decide whether electors must vote for state popular vote winner
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Supreme Court asked to decide whether electors must vote for state popular vote winner

Three 2016 electors from Washington state petitioned the US Supreme Court on Monday to decide whether the state has the power to enforce how an elector casts their ballot and to fine that elector for voting with discretion.

In re Guerra is being appealed from the Supreme Court of Washington, which upheld $1,000 fines on the electors, Peter Bret Chiafalo, Levi Jennet Guerra and Esther Virginia John, for voting for Colin Powell instead of Hillary Clinton in the 2016 election, despite Hillary Clinton winning the popular vote in the state.

The Washington Supreme Court held that the states have the ability to direct how the electors vote after appointment to their position. The Petitioners believe that this is the first fine imposed on an elector in the history of the Republic.

The US Court of Appeals for the Tenth Circuit recently reached an opposite conclusion, holding that the electors have discretion in their voting under the Twelfth Amendment.

The Twelfth Amendment states, “The electors shall meet in their respective states and vote by ballot for President and Vice-President.” Washington state law RCW 29A.56.340, which has since been amended to remove the provision, stated in 2016, “any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.”

The Petitioners assert that the court should take this “rare opportunity to decide a constitutional question related to presidential selection in a non-emergency setting.”

The court has previously ruled that the electors, once appointed, “exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution.” The meeting of the electors following the election and their duties in reporting are governed by federal law. “There is no mechanism for state officials to monitor, control, or dictate electoral votes.” Additionally, Congress has, throughout history, accepted all of the votes contrary to pledges that electors have given to it.

The Washington Supreme Court majority, however, maintained that the electors act by authority of the State and therefore do not have discretion in casting their vote. The dissent cited Justice Jackson, contending that the “plan originally contemplated” was that “electors would be free agents.”