Thursday, May 23, 2019

Failing Out Of The Electoral College

The Washington State Supreme Court has upheld fines imposed on two Democratic electors who did not vote the candidates who won the state vote - Hillary Clinton and Tim Kaine.

Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector's violation of his pledge. We affirm the trial court.

The story

Appellants were nominated as presidential electors for the Washington State Democratic Party ahead of the 2016 presidential election. Hillary Clinton and Tim Kaine won the popular vote in Washington State, meaning appellants and their fellow Democratic Party nominees were appointed by the legislature to serve as electors for the State of Washington.

Based on the results from the nationwide election, it was expected that Donald Trump would become the next president. Nationwide, some electors, including appellants, announced they would not vote for either Clinton or Trump and would instead attempt to prevent Trump from receiving the minimum number of Electoral College votes required to become president.^ Under the Constitution, if no candidate receives a majority of the Electoral College votes, the House of Representatives is to determine who will be the next president.

On December 19, 2016, appellants, along with the other presidential electors, met in Olympia to cast their ballots. Appellants did not vote for Hillary Clinton and Tim Kaine, as required by their pledge, but instead voted for Colin Powell for president and a different individual for vice-president. These votes were counted and transmitted to Congress for the official tally of the electoral votes. On December 29, 2016, the Washington secretary of state fined appellants $1,000 eaeh, under RCW 29A.56.340, for failing to vote for the nominee of their party.

Justice Gonzalez dissented

In 1976, Michael J. Padden, a Washington elector, voted for Ronald Reagan even though the Republican Party nominated Gerald Ford.' The following year, the legislature enacted a law requiring electors to vote for the candidates nominated by their political party or face a civil penalty of up to $1000. Laws of 1977, 1st Ex. Sess., ch. 238, §§ 1-2. In 2016, the electors before us did not vote for the candidates nominated by their party. We must decide if the State has the constitutional authority to impose a civil penalty on them. The majority upholds imposition of the civil penalty... 

There is a meaningful difference between the power to appoint and the power to control. "A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power." Br. for Amicus Curiae Independence Inst. at 8 (citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405, 4 L. Ed. 579 (1819)). The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. Const. art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party. I respectfully dissent.

(Mike Frisch)

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