A recent blog post discussed the case of Michael Baca, a Presidential Elector from Colorado who instead of voting for Hillary Clinton–as required by state law because she won the state’s popular vote–voted for moderate Republican John Kasich.
Along with other Electors in Colorado and elsewhere, Baca was trying to get Republican electors who might be similarly horrified by the prospect of a Trump presidency – it is hard to believe now but there were many in 2016–to help save us from that fate by diverting enough votes to throw the presidential race into the House of Representatives. The U.S. Constitution requires that when no candidate reaches the 270 votes needed for an Electoral College majority, the House determines who gets to be President from among the top three vote-getters, as has happened on three occasions.
All but two states require Electors to vote for the winner of the state’s popular vote in a winner-take-all manner. Throughout history, a handful of Electors have refused to do so and they have often been referred to as Faithless Electors. Baca, however, who launched his effort with Peter Chiafalo, a Democratic Elector from Washington State, dubbed his group the “Hamilton Electors,” a name with more contemporary cachet thanks to the Broadway musical. He named it after founding father Alexander Hamilton, whose Federalist paper No. 68, described the role of Electors in making the case for having the President chosen by them, rather than by the popular vote.
The State of Colorado refused to count Baca’s vote, removed him, and replaced him with someone who then voted for Clinton. It also threatened Baca with criminal prosecution but did not carry through on the threat.
Baca sued and on August 20, 2019, the Tenth U.S. Circuit Court of Appeals held that states, though they determine how Electors are chosen, cannot dictate to them how they vote, no remove them or punish them for their votes. “The text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice,” wrote U.S. Circuit Judge Carolyn B. McHugh, in Baca v. Colorado Department of State. She was joined by Judge Jerome A. Holmes in the 2-1 ruling, with the third judge on the panel, Mary Beck Briscoe, dissenting based on her view that the case was moot.
Now a similar challenge brought by three Hamilton Electors, Chiafalo v. State of Washington, aims to bring the question of Elector discretion before the U.S. Supreme Court.
The case seeks review of a decision by the Supreme Court for the State of Washington which on May 23, 2019, upheld a $1,000 penalty against Electors Chiafalo, Levi Guerra and Esther John because in 2016, they voted for former U.S. Secretary of State Colin Powell rather than Hillary Clinton. A law authorizing a penalty of up to that amount was enacted in 1977, after a Washington Elector for the Republicans voted for Ronald Reagan rather than Gerald Ford in the 1976 election (won by Democrat Jimmy Carter).
The contrast with Baca illustrates the different approaches taken by different states. Though the Secretary of State imposed the maximum civil penalty on the three, they were not replaced and their votes for Powell were transmitted to Congress. Baca, on the other hand, was not fined or prosecuted but his vote was not counted and he was replaced with someone else who did vote for Clinton, who also won that state.
Chiafalo, Guerra and John first appealed the consiutionality of the fines to an administrative law judge, who lacking authority to rule on such matters, affirmed the penalty. They then took their appeal to Thurston County Superior Court, which also affirmed, finding the fines constitutional because “[t]he State is not adding a qualification, nor is the State here requiring specific performance of the pledge.”
The three Washington Electors next sought direct review by the Washington Supreme Court, which ruled against them, 8-1. (The case was then known as In re Guerra.) The sole dissenting Justice wrote “The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.”
On October 7, Chiafalo, Guerra and John, filed a petition for certiorari, Chiafalo v. State of Washington, with the U.S. Supreme Court. It was past the 90-day time for filing but Justice Elena Kagan had granted them an extension after they asked for more time so they could await the resolution of the then-pending appeal in Baca, which was decided on August 20.
The petition presents two questions for decision by the U.S. Supreme Court: Whether enforcement of the state law is unconstitutional because (1) a state has no power to legally enforce how a presidential elector casts a ballot; and (2) a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.
The petitioners assert that the Court should take the case because of the clear split in authority between federal and state courts, due to the disparate decisions in Chiafalo. Those conflicting decisions concern “a critically important question of federal constitutional law: whether, after appointment, a state may by law direct how presidential electors cast their votes for President and Vice President, and enforce that direction through legal penalties,” they told the Court.
They urge it to resolve the conflict now, “before it arises in the context of a contested election.” In the most recent presidential election, in 2016, 10 of the 538 Electors cast votes for someone other than their party’s nominee, or tried to do so, a swing that would have changed the outcome in five of the prior 58 presidential elections, they point out. They call that “a dangerous possibility” and one the Court should avoid.
Granting an appeal would allow the Court to decide the issue in a non-emergency setting with ample time for consideration, unlike two prior cases involving presidential electors that were decided, of necessity, within a matter of days. One of those cases was Bush v. Gore, 531 U.S. 98 (2000), where a switch by just Four Faithless Electors would have put Al Gore in the White House.
The other was Ray v. Blair, 343 U.S. 230 (1952), relied on by the Washington Supreme Court. Ben Ray, Chairman of the Executive Committee of the Democratic Party in Alabama, refused to certify Edmund Blair as an Elector because Blair would not certify that he would support the Democratic nominee. Alabama law did not require such a pledge but it gave political parties the right to set the criteria for their party’s Electors. Blair obtained a writ of mandamus requiring the party to certify him and the Alabama Supreme Court upheld it on the reasoning that the pledge requirement improperly restricted Electors’ freedom to vote for the candidate of their choice.
In reversing, 5-2 (with Justices Hugo Black and Felix Frankfurter not participating), the U.S. Supreme Court concluded, in an opinion by Justice Stanley Reed, “that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.”
Justice Robert Jackson, joined by Justice William O. Douglas, dissented, stating “no one faithful to our history can deny that the plan originally contemplated what is implicit in its text–that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.”
In reaching a contrary conclusion in Baca, the Tenth Circuit distinguished Ray as dealing only with the selection of Electors and not with the power of the state beyond the initial appointment, once an Elector has voted as a member of the Electoral College. “The Constitution does not provide the power to interfere once voting begins [among the electors],” wrote the Baca majority.
The plaintiffs in both the Chiafalo and Baca cases are represented by Harvard Law Professor Lawrence Lessig and the election reform advocacy group, Equal Citizens, founded by Lessig in the wake of the 2016 election. The group is “dedicated to reforms that will achieve citizen equality,” including reforming the Electoral College and campaign finance laws.
It is not yet known whether Colorado will seek Supreme Court review of the Tenth Circuit’s holding in Baca. It has until November 18 to file a petition.