Rogue electors are undeterred by their latest legal setback

Each had signed a pledge to support the Democratic nominee when they were chosen by peers.

Bret Chiafalo

Bret Chiafalo

OLYMPIA — A year after they broke ranks with their party by not supporting Hillary Clinton for president, three Democratic electors continue fighting to prove they had every right to do what they did.

The trio took part in an unprecedented and unsuccessful campaign to deny Donald Trump a win in the Electoral College in 2016 by encouraging Republican electors to back another candidate for the nation’s highest office.

Trump had pretty much sewn up enough votes by the time Washington’s 12 Democratic electors gathered in the state Capitol on Dec. 19 to cast ballots for Clinton, who won the state’s popular vote. Each had signed a pledge to support the Democratic nominee when they were chosen by peers in their party to serve as electors.

But Bret Chiafalo, of Everett, Levi Guerra, of Warden, and Esther John, of Seattle, went rogue that day. They marked their ballots for Colin Powell, a Republican and former U.S. Secretary of State, whom they considered a better alternative to Trump to lead the country. Bob Satiacum, of the Puyallup Tribe, backed Faith Spotted Eagle, a Native American leader in South Dakota.

All four received $1,000 fines for violating a state law requiring electors keep their pledge. Chiafalo, Guerra and John appealed contending the “faithless elector” law is unconstitutional because it infringes on their free speech rights.

In March, an administrative law judge rejected their arguments. And Dec. 8 they suffered another setback when Thurston County Superior Court Judge Carol Murphy denied their claims.

In her brief order, Murphy said the three electors failed to meet the burden required to show the statute violated the state or federal constitutions. She upheld the penalty levied by the Secretary of State’s Office.

Chiafalo attended the hearing and described the outcome as “mildly unsatisfying.” He said he looked forward to the constitutional questions getting tackled by the state Supreme Court, and the nation’s high court if necessary.

“This is a question that needs to be answered,” he said. “This cannot just be an unknown.”

Secretary of State Kim Wyman declined to comment on the ruling.

The fine — which has never previously been imposed — was established by the Legislature in 1976, which was the last time an elector broke from the popular vote in the state. That year Mike Padden of Spokane Valley, who is currently a Republican state senator, voted for Ronald Reagan instead of Gerald Ford.

In this case, lawyers for the electors argued the state did not have the constitutional power to compel the electors to vote for a particular presidential and vice-presidential candidate, and could not penalize an elector who voted contrary to their pre-election pledge.

Attorney Lawrence Lessig, founder of Equal Citizens and a professor at Harvard Law School, represented electors at the hearing.

A spokesman for Lessig and Equal Citizens said the electors received “a fair hearing in front of a careful judge who took our claims seriously.”

“We’re disappointed that the judge didn’t agree with us, and it’s unfortunate that she failed to offer a detailed explanation of just where our argument went wrong,” Jason Harrow, chief counsel of Equal Citizens, wrote in an email.

“But we always knew that this was just the first step, and this ruling does not alter our ultimate goal of taking this case up the Washington court system and then to the U.S. Supreme Court,” Harrow said.

Lawyers for Wyman, who is the state’s chief election officer, said the law does not violate anyone’s constitutional rights by telling them how to vote. However, in line with the U.S. Constitution, it does set the rules for electors and the punishment for not following them.

“Petitioners were free to — and did — cast their electoral ballots as they deemed,” Deputy Attorney General Callie Castillo wrote in a brief that defended the statute. But Castillo also pointed out that “the courts have consistently recognized that, when electors cast their ballots, they do so on behalf of the state that appointed them.”

The petitioners “willingly chose to stand for nomination as an elector and signed their pledges accordingly,” Castillo wrote. “They cannot now escape the rules and requirements of that position by claiming a constitutional violation where none exists.”

Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com. Twitter: @dospueblos.

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