The Electoral College and the First Amendment

by Iris Wexler

On Wednesday May 13th, 2020,  the U.S. Supreme Court heard oral arguments on Chiafalo v. Washington State (combined with another similar case in Colorado.)  The issue in these cases is basically whether the electors who comprise the electoral college have a right to vote their conscience rather than the will of the voters they represent. https://www.scotusblog.com/2020/05/argument-analysis-in-a-close-case-concerns-about-chaos-from-faithless-electors/   

 How this case is decided  could have a profound effect on the upcoming 2020 presidential election. In Chiafalo v. Washington case the high Court will decide whether state laws punishing electors for voting differently than is mandated by state law violates the First Amendment right to free speech and expression. The Chiafalo v. Washington case is pending adjudication of the United States Supreme Court 2019-2020 No. 19-465.

 “Under the current law of Washington State, presidential candidates in each political party are required to nominate for the Electoral College electors from its party equal to the number of representatives and senators allotted to the state. Washington follows a “winner-take-all” electoral system, meaning that all of a state’s electoral votes go directly towards the winner of the popular vote in that state. The nominees are required to vote for the candidate running in their party, and nominees who fail to vote for their candidate is subject to a fine up to $1,000” (Oyez, paragraph 2). 

The argument of the case is whether there should be enforcement towards voting laws in Washington state revolving around “faithless electors”. The law would entail threatening electors who vote contrary to their party’s candidate. The issue of this is whether “faithless electors” should receive a fine up to $1,000 if voting contrary to their party, following potential punishment or replacement. The highly anticipated decision that will be made by The Supreme Court is forecasted to be presented by the upcoming 2020 United States presidential election. 

The case arose after the 2016 presidential election took place when petitioners Peter Bret Chiafalo, Levi Jennet Guerra, and Esther Virginia John were nominated as a few of the presidential electors of the Democratic Party in Washington State. When Clinton/Kaine won Washington state’s popular vote, the electors were entitled to cast their ballots based on the winners of the election. Instead, for President, they voted for Colin Powell and different candidates for Vice President. The electors who violated the requirements were fined $1,000 by Washington Secretary of State for failing to vote for the nominee of their party as well as violating the state’s law.  

The results based on the national election; it was evident that Donald Trump would be our next president. Some electors and appellants nationwide announced that they would not vote for Clinton nor Trump and would attempt to prohibit Trump from receiving the minimum number of votes from the Electoral College to prevent him from becoming president. Stated in the Constitution, if neither candidate receives a majority of the Electoral College votes than it is the House of Representatives’ responsibility to decide the next president. 

In response, the electors disputed the fines to an administrative law judge, stating that the fine is violating the First Amendment and it is unconstitutional. The electors believe that the fine is violating their First Amendment rights because casting a vote is their given choice and it is exercising their freedom of speech and press. They believe voting is a form of speech under the First Amendment and it is their fundamental right entitled to full protection under the United States Constitution. “The electors argued that the constitutional provisions governing presidential elections give entitlement to electors to have the right to vote for whomever they wish regardless of the state’s law. The electors also claimed a First Amendment right to veto the preferences of Washington’s voters. The Washington State Courts responded by rejecting these arguments. The electors precisely asked the Court to rule on First Amendment issues but lacked support in their statements” (Public Citizen 1). “The judge approved the imposition of the fine due to the electors having no authority to rule on constitutional matters upon the judge. The appellants appealed to the Thurston County Superior Court. In response, the court declared the Secretary of State. The appellants proceeded to direct review on appeal to The Washington Supreme Court” (Ballotpedia, 2019).

“On May 23, 2019, Washington Supreme Court upheld the ruling of the trial court, stating that the fines were constitutional under Article II, section 1, that the electors were not granted discretion in casting their votes under the Twelfth Amendment nor did the fine impede with a federal function. An elector acts under the authority of the State, meaning that a First Amendment right is not considered violated when a state imposes a fine based on an elector’s violation of their pledge” (Ballotpedia, 2019).  

The case was scheduled to be heard among the United States Supreme Court before the October 2019-2020 term. The oral argument of this case was initially scheduled for April 28th, 2020. On April 3rd, the U.S. Supreme Court announced that the trial would be postponed due to following health guidance in response to the severity of COVID-19.

The argument of this case presents an important unresolved question of federal constitutional law. The United States Supreme Court is being asked whether enforcement of this law is unconstitutional because a state does not have the power to enforce how an elector must cast their ballot, and if it violates the First Amendment if a state penalizes an elector for exercising their constitutional discretion. 

In conclusion, the questions that are being tackled is if there should be a law issued by the state requiring presidential electors to vote based on the direction of the state’s law and if they should be subject to a fine. If the U.S. Supreme Court rules that the state’s electors have the right to vote their conscience without penalty, it could change what the electors do, and theoretically impact future electoral college outcomes. The Supreme Court is being asked to resolve a critical question involving the foundation of our democracy before the 2020 election to avoid possible chaos, resolve uncertainties, and confusion that could arise post-election litigation. 

 

Work Cited

“Chiafalo v. Washington.” Oyez, www.oyez.org/cases/2019/19-465. Accessed 10 Mar. 2020.

Service, Wire. “Supreme Court to Hear Washington Case of ‘Faithless’ Electors.”HeraldNet.com

,HeraldNet.com, 17 Jan. 2020, www.heraldnet.com/news/supreme-court-to-hear-

washington-case-of-faithless-electors/

“Chiafalo v. Washington.” Ballotpedia, ballotpedia.org/Chiafalo_v._Washington.

Barnes, Robert. “Supreme Court to Weigh Whether States, Including Washington, Can 

Punish ‘Faithless’ Electors.” The Seattle Times, The Seattle Times Company, 17 Jan. 2020 http://www.seattletimes.com/nation-world/supreme-court-will-hear-whether-states-may-punish-electoral-college-members-who-ignore-popular-vote-results/

Docket for 19-465, http://www.supremecourt.gov/docket/docketfiles/html/public/19-465.html.

“Chiafalo v. Washington.” Public Citizen, www.citizen.org/litigation/chiafalo-v-washington/.

Hamm, Andrew. “Chiafalo v. Washington.” SCOTUSblog, www.scotusblog.com/case-files/cases/chiafalo-v-washington/.

 

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