The ability of presidential electors to back the candidate of their choice rather than the one who wins the state’s popular vote could soon be a question the U.S. Supreme Court tackles.
On Tuesday, a federal appeals court ruled that three presidential electors from Colorado were unconstitutionally forced to cast their Electoral College votes for Hillary Clinton in 2016, the Denver Post reported.
In a 2-1 decision, the court found the Constitution provides “presidential electors the right to cast a vote for president and vice president with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”
The decision pleased an Everett man who was one of four “faithless” Washington electors fined $1,000 by the Washington Secretary of State when they did not back Clinton in 2016.
“Their reasoning is very strong,” Bret Chiafalo said of the federal appellate judges.
Chiafalo, Esther John of Seattle, and Levi Guerra of Warden fought their fines, contending the civil penalty infringed on their constitutional rights to free speech which allowed them to vote their conscience as members of the Electoral College
In May, Washington’s Supreme Court ruled against them, concluding the state is empowered under the Constitution not only to draw up the rules for elections, but also to determine how to enforce them.
Now, with the federal panel coming up with a different view, the matter seems certain to go to the high court.
And, Chiafalo said, it could be the case of Washington’s electors rather than Colorado’s that is heard.
“We have every reason to believe this case will be heard and ruled upon before the general election in 2020,” he said.
The Colorado case involves three Democratic Party electors — Micheal Baca, Polly Baca and Robert Nemanich. After Colorado voted for Clinton in the 2016 race, the three were required under state law to cast their electoral votes for her but wanted to instead vote for John Kasich, a former Republican governor of Ohio, and stop Republican Donald Trump from becoming president, the Denver Post reported.
After voting for Kasich, Michael Baca was replaced by an elector who would vote for Clinton. That led the other two electors to cast their votes for Clinton, despite their desire to vote for Kasich. The three later sued the Colorado Secretary of State’s Office.
“This is an incredibly thoughtful decision that could advance substantially our campaign to reform the Electoral College,” said Lawrence Lessig, a Harvard Law professor and lawyer for the electors in both the Washington and Colorado cases.
“We know Electoral College contests are going to be closer in the future than they have been in the past; and as they get closer and closer, even a small number of electors could change the results of an election,” he said in a statement Wednesday. “Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election.”
In Washington, Chiafalo, Guerra and John did sign pledges to cast their votes for the party’s nominee, Clinton, if she won the popular vote, which she did. When the Electoral College met they backed former U.S. Secretary of State Colin Powell instead.
What they did wasn’t a surprise. Chiafalo and Baca helped found Hamilton Electors, which at the time was conducting a national campaign to derail Trump’s presidency by getting electors of both parties to break their pledges and vote for a different Republican to be the nation’s leader. If they could deny Trump a majority, the U.S. House of Representatives would choose the president.
The plan failed. The trio have been fighting since.
Fines won’t be an issue in Washington in the future as a 2019 law eliminates them.
Instead if an elector breaks their pledge, they will be removed and an alternate elector appointed to take their place. That’s what Colorado did in 2016 and the federal appeals court concluded Tuesday that was wrong.