By Gene Johnson / Associated Press
SEATTLE — Three Democratic electors from Washington state who joined a longshot effort to deny Donald Trump the presidency in 2016 are challenging the $1,000 fines they received for breaking their pledge to support their party’s nominee.
Bret Chiafalo, Levi Guerra and Esther John had agreed to support Hillary Clinton in the Electoral College if Clinton won the popular vote in Washington, which she did.
Instead, they joined some other electors from around the country in casting votes for Republican Colin Powell. The idea was to deny Trump a majority, thus throwing the election to the U.S. House of Representatives — something that last happened in 1824.
The plan failed. Washington Secretary of State Kim Wyman imposed fines of $1,000 on each elector for breaking their vow to honor the will of voters.
In arguments before the state Supreme Court in Olympia on Tuesday, the trio’s lawyer, Harvard Law professor Lawrence Lessig, argued that the fines violated their First Amendment rights. The nation has a long history of having electors vote their conscience, he said, and never before has one been fined for doing so.
“The question for this court is not whether they were right; the question is whether they had a right,” Lessig told the justices. “If they have a constitutional freedom, then they can’t be fined for exercising that freedom.”
The electors unsuccessfully asked a federal court to block the state from fining them. The court found that federal law does not give electors absolute freedom to vote for the candidates of their choice, and the 9th U.S. Circuit Court of Appeals denied their request for an emergency order.
On Thursday, the 10th Circuit Court of Appeals will hear arguments in a similar case concerning Colorado elector Michael Baca. He saw his vote discarded under state law because he wrote in the name of then-Ohio Gov. John Kasich instead of Clinton.
Voters in the U.S. do not directly vote for a president and vice president. Instead, they vote for a slate of electors who pledge to cast their votes for their party’s nominee through the Electoral College.
While the Constitution gives states the power to appoint electors, the debate centers on whether the states can control how the electors vote.
An attorney for Washington state, deputy solicitor general Callie Castillo, told the state Supreme Court that the electors did not have a free-speech interest in how they cast their vote. But, she said, the state does have an interest in ensuring the will of the people is honored.
“Nothing in the Constitution prevents the state from placing conditions on presidential electors and then holding them to those conditions,” the state wrote in a brief. “And no court — anywhere — has adopted petitioners’ view that presidential electors have a First Amendment right to cast their ballots free of influence by the state.”
Wyman, who attended Tuesday’s hearing, said Castillo “did a fantastic job in making the arguments why the fine is relevant and just.”
Chiafalo, who lives just south of Everett, was also on hand. He recounted afterward that he had “every intention” of keeping his pledge to vote for Clinton — until the outcome was clear.
He said he believed that as an elector he was a federal official and that by casting a vote for Powell he was carrying out his “duty to stop Donald Trump from being president.”
John, an administrative assistant at her Quaker church in Seattle, said she had no qualms about taking action to oppose Trump in the Electoral College, even if it meant voting for someone who didn’t win the popular vote in Washington.
“I knew that he wasn’t qualified, that he had said horrible things about women,” she said. “I thought maybe we could get some Republican electors to come on our side.
The justices did not indicate how soon they would rule.
Chiafalo doesn’t think this court will be the last stop in this legal fight.
“It is a fascinating case. We really need to understand how we elect our president.,” he said. “I do believe that one way or the other, this will end up in the U.S. Supreme Court.”
Herald writer Jerry Cornfield contributed to this report.