Chiafalo v. Washington

Issues 

Under the First Amendment and the Constitution, is it unconstitutional for Washington State to fine presidential electors who voted for a candidate that was not nominated by their political party?

Oral argument: 
April 28, 2020
Court below: 

This case asks whether a state may sanction a presidential elector who does not vote according to the state’s legislatively mandated procedures for how presidential electors must vote. The Electoral College is comprised of each state’s electors based on its number of U.S. senators and representatives. Under Article II of the Constitution, each state selects the presidential electors who will cast the state’s allotted votes for the President and Vice President. In Washington State, each political party selects a group of electors who will represent the State if their candidate receives the most votes on Election Day in November. Washington law requires that each of its appointed electors pledge that they will vote for the candidate nominated by their party. Anyone who does not fulfill this pledge and becomes a “faithless elector” is subject to a civil penalty of up to $1,000. Petitioners Chiafalo, Guerra, and John were fined after violating their pledge. They argue that Washington’s law sanctioning faithless electors is unconstitutional because the Constitution forbids the states from controlling or imposing any conditions on its state’s presidential electors. Respondent Washington State counters that the Constitution does not impose any conditions on the methods that states use to select their electors and therefore, states can choose whether or not to impose any restrictions on their presidential electors. The outcome of this case has implications on the 2020 presidential election, the institutional legitimacy of the Electoral College, and state involvement with presidential electors.

Questions as Framed for the Court by the Parties 

Whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.

Facts 

The people of the State of Washington vote for president on Election Day in November. In re Guerra at 2. Presidential electors, however, cast the ultimate vote for president in the Electoral College according to Article II, Section I of the Constitution. Id. at 6–7. Washington State election law requires political parties to appoint their own presidential electors, and the political party of the presidential candidate who wins Washington State’s popular vote on Election Day sends its electors to the presidential convention to cast their votes for president. Id. at 2. The electors must pledge to vote for their party’s candidate. Id. Washington State is one of 48 states that have a “winner-take-all” electoral system; in this system, the winning political party receives the votes of all electors allotted to the state based on its number of U.S. senators and representatives. Id. Prior to the 2016 election, the Washington State Democratic Party nominated Petitioners Levi Guerra, Esther John, and Peter Chiafalo as presidential electors. Id. at 3. The electors took an oath to vote for the candidate who won the State’s popular vote. Id. After Hillary Clinton and Tim Kaine won Washington State’s popular vote, the State’s legislature called on Guerra, John, and Chiafalo to cast their ballots in favor of Hillary Clinton and Tim Kaine, according to their pledge to vote for their party’s candidate. Id. On December 19, 2019, however, the three electors cast their ballots for Colin Powell for president and another candidate for Vice-President. Id. On December 29, 2016, after their votes were counted and transmitted to Congress, the Washington Secretary of State fined Guerra, John, and Chiafalo $1,000 each for violating the Washington State election law that requires electors to faithfully cast their ballots for their party’s candidate. Id. at 2, 4.

First, the three faithless electors appealed their penalty to an administrative law judge (“ALJ”), arguing that the fine was unconstitutional. Id. at 4. The ALJ upheld the fine because that tribunal did not have the power to rule on constitutional issues. Id. Next, the electors appealed to the Washington Superior Court, where the judge upheld the fine as constitutional. Id. at 4. The Washington Supreme Court affirmed, ruling that nothing in the Constitution, including Article II, Section I, which articulates the processes related to the Electoral College, and the Twelfth Amendment, which requires that each elector vote for the Vice President and President on distinct ballots, prohibits states from imposing conditions on electors as part of their appointment. Id. at 15, 17–18, 21–22. Additionally, the Washington Supreme Court rejected the electors’ argument that the state’s fine interfered with a federal function—the presidential election process—because the Constitution gives states “absolute authority” to dictate the method for appointing electors. Id. at 17–18, 21. The Court also rejected the argument that the fine violated the petitioners’ First Amendment rights. Id. at 22–24. The Supreme Court granted certiorari on January 17, 2020 and originally consolidated this case with a similar case, Department of Colorado v. Baca, but the Clerk of the Supreme Court announced on March 10, 2020, that the cases were no longer consolidated for oral argument.

Analysis 

ELECTOR INDEPENDENCE UNDER ARTICLE II

Chiafalo argues that Article II of the Constitution envisioned a system where presidential electors were independent and exercised discretion when they voted for the president. Brief for Petitioners, Presidential Electors at 19. Chiafalo asserts that the plain meaning of Article II conveys this vision by declaring that each state shall appoint Electors who vote by ballot. Id. Chiafalo first claims that the power to “appoint” does not ordinarily include the power to control or remove the appointee. Id. at 19–20. To demonstrate this point, Chiafalo discusses the President’s power to appoint federal judges but his inability to remove or sanction them. Id. at 20. While Chiafalo concedes that the President’s power to appoint his subordinates also includes the ability to remove them, he maintains that the President’s removal power over his subordinates comes not through the appointment power, but derives from Article II’s Take Care Clause, which requires the president to ensure that the laws are faithfully executed, and the Vesting Clause, which vests the president with the executive power. Id. at 23.

Chiafalo further argues that the Framers vested “electors,” as opposed to “agents” or “delegates,” with the right to select the President because the term “elector” describes an individual who exercises discretion and does not act on behalf of someone else. Id. at 24. Chiafalo also contends that the use of the word “vote” implies that electors are meant to independently choose the President. Id. at 27. To bolster this assertion, Chiafalo claims that the Supreme Court has often similarly linked voting with a voter’s independent choice. Id. at 28. Lastly, Chiafalo argues that Article II requires electors to vote by ballot, a system where, since the time of the Founding, votes are privately placed in a box and then counted only after everyone has voted. Id. at 29. Chiafalo contends that the use of this system clearly shows that electors were meant to vote independently. Id. at 30–31.

The State of Washington (“Washington”) counters that Article II does not limit a state’s ability to impose conditions on electors. Brief for Respondent, State of Washington at 22. Washington argues that the “default rule” is that the power to appoint incorporates removal power. Id. While it concedes that the Constitution can limit an entity’s removal power, Washington asserts that the Constitution never expressly limits the states’ authority to remove their electors. Id. at 22­–23. Moreover, Washington contends that the power to remove also includes the power to control and impose conditions. Id. at 31.

Washington next counters Chiafalo’s other textual arguments, claiming that Chiafalo took the words “electors,” “vote,” and “by ballot” out of context to support his argument. Id. at 34. Washington first argues that simply because an “elector” has a right to “vote” does not automatically mean that a state cannot place conditions or restrictions on the elector’s vote. Id. at 35. Washington asserts that sometimes the right to vote may only provide one real option, for instance where there is only one candidate running for a position. Id. Washington also adds that individuals often relinquish their vote to someone else and simply vote as their proxy. Id. Therefore, Washington argues that just because Article II uses the words “elector” and “vote” does not automatically imply that a presidential elector has “unfettered discretion” with that vote. Id. Washington also claims that a ballot system does not automatically confer unrestricted discretion on presidential electors as the nation’s very first elections used a ballot that did not provide for any electoral discretion. Id. at 37–38. Washington asserts that at these early elections many state ballots merely required electors to sign prepared forms with designated political candidates. Id. at 38. Washington therefore contends that Chiafalo is incorrect to claim the text of Article II requires electoral discretion. Id. at 38.

THE TWELFTH AMENDMENT

Chiafalo argues that the Twelfth Amendment, which was ratified in 1804 and changed the procedure for choosing the President and the Vice President, did not transform the electors’ role in the presidential process and continued to provide them with a discretionary vote. Brief for Petitioners at 32. Prior to the Twelfth Amendment’s adoption, Chiafalo claims that dozens of electors casted “faithless” votes, or discretionary votes. Id. at 32–36. Chiafalo claims that the Twelfth Amendment merely changed the voting process; electors would now vote separately for the President and the Vice President as opposed to awarding the Presidency to the candidate with the most votes and the Vice Presidency to the candidate with the second-to-most votes. Id. at 32.

Chiafalo contends that had the drafters of the Amendment been unsatisfied with the dozens of faithless electoral votes in the previous elections, they would have reflected that dissatisfaction in the Amendment. Id. at 36–37. Further supporting the assertion that states do not have control over their electors, Chiafalo argues that the Twelfth Amendment explicitly excludes state officials from the electoral voting process. Id. at 37.

Washington counters that when the Twelfth Amendment was adopted, it was understood that electors were supposed to vote in line with the public’s choice. Brief for Respondent at 26. Washington argues that the Twelfth Amendment intended to prevent rogue electors from swinging the outcome of an election and electing a president against the public will. Id. at 26–27. Specifically, Washington contends that Congress added the Amendment out of concern that one party’s electors would undermine the opposing party’s campaign and vote for the opposing party’s vice-presidential nominee to make them president. Id. Washington argues that when Congress added the Amendment, it was fully aware that electoral voting was a “mere formality” and had no issue with it. Id. at 28. Had there been a problem, Washington contends that Congress would have addressed it in the Amendment. Id.

Additionally, Washington contends that Chiafalo incorrectly argues that the Twelfth Amendment implicitly approves faithless voting because the Amendment did not expressly prohibit it. Id. at 30. Washington asserts that the true question of the case is whether “the Constitution prohibits States from binding electors,” not whether the Constitution requires electors to follow the public will. Id. On that note, Washington maintains that, prior to 1804, states had been appointing electors who pledged to vote for a particular candidate. Id. Washington therefore claims that Congress felt no need, through the Twelfth Amendment, to explicitly allow state control over electors since the states were already doing so. Id. at 31. Washington concludes that Congress also did not prohibit faithless electing because they left it up to the states to make that choice for themselves. Id.

OTHER CONSTITUTIONAL CONSTRAINTS

Chiafalo next argues that the Supremacy Clause, which provides that the Constitution and federal law are the “supreme law of the land” and take priority over conflicting state laws, prevents states from imposing conditions on presidential electors because they perform a “federal function.” Brief for Petitioners at 38. Chiafalo asserts that the Supreme Court has long viewed presidential electors as performing a federal function. Id. at 39. Therefore, Chiafalo claims, the Supremacy Clause prevents states from controlling individuals performing a federal function, even if the individuals performing the function, like the presidential electors in this case, were appointed under state law. Id. at 40–41. Chiafalo also asserts that states cannot indirectly control the electors by imposing legal conditions that burden the performance of their job. Id. at 42. Finally, Chiafalo argues that the public’s expectations today cannot amend the original constitutional entitlement to elector independence that the Framers sought to construe. Id. at 49. While Chiafalo concedes that the public views electors as delegates, the Constitution gives electors the right to their independent vote, a right that cannot be abridged absent a constitutional amendment. Id. at 49–50.

Washington counters that the federal function doctrine, which prevents states from controlling individuals acting pursuant to a federal mandate, does not prevent states from controlling their electors’ votes. Brief for Respondent at 48. Washington first argues that Chiafalo misinterprets the two cases it relies on to make its federal function argument, Burroughs v. United States and Ray v. Blair. Id. at 48–49. Washington claims that both cases referred to the presidential electors’ role as a federal function “in passing,” while instead envisioning the states as ultimately controlling the electors. Id. at 49–50. Additionally, Washington claims that the federal function doctrine only applies in cases where state control would obstruct the functioning of the federal government. Id. at 51. But Washington asserts that state control of the electors would not obstruct the Government because the federal government does not vote for the President. Id.

HISTORICAL RECORD AND PRECEDENT

Chiafalo argues that the historical record demonstrates the longstanding principle of elector independence. Brief for Petitioners at 46. First, Chiafalo claims that throughout the nation’s history there have been 180 faithless votes; on the sole occasion where someone challenged a faithless vote, Congress held the vote to be valid under the principle of elector independence. Id. at 46–47. Chiafalo next argues that the Supreme Court’s holding in Ray v. Blair demonstrates that while states have the right to require presidential electors to pledge to vote faithfully, that pledge has no legal effect and is unenforceable. Id. at 48. Chiafalo contends that in Ray the Court explicitly stated that compelling a presidential elector to vote a particular way in the Electoral College might violate his or her constitutional rights. Id.

Washington counters that the historical record and precedent dictate that presidential electors cannot vote faithlessly. Brief for Respondent at 38–39. Washington claims that the Supreme Court has always viewed the presidential electors’ role as merely transmitting the people’s vote. Id. at 39–40. While Washington concedes that Ray holds that states can only require electors to pledge to vote in line with the public’s choice, it argues that states must then be able to enforce that pledge. Id. at 40–41. Washington argues that the historical record shows that states can bind their presidential electors. Id. at 45. Washington claims that presidential electors have voted according to their pledges and the public will since the very first election. Id. While Washington concedes that faithless electors have appeared in various elections, those instances pale in comparison to the tens of thousands of electors who voted in line with the public’s will, and those faithless votes had no right to ignore their voter’s intentions. Id. at 46–48.

Discussion 

THE ELECTORAL COLLEGE & INSTITUTIONAL LEGITIMACY

The Making Every Vote Count Foundation (“MEVC”), in support of neither party, argues that regardless of the Supreme Court’s ruling, states and political parties will need to reassess their methods for appointing electors. Make Every Vote Count Foundation, in Support of Neither Party at 4. MEVC argues that if the Court holds that electors have discretion to vote as they choose, many states will have to redesign their ballots to provide state voters with the names of their electors instead of the presidential candidates because, otherwise, there would be no mechanism to hold electors accountable to vote along party lines or according to the state’s popular vote. Id. at 6–7. Alternatively, MEVC predicts that if the Court holds that states may replace faithless electors with new electors who will cast their votes in accordance with their respective voters’ preferences, many states that do not have a mechanism to sanction faithless electors will need to change their laws. Id. at 7.

Campaign Legal Center and Issue One (“CLC”), in support of Washington State, argue that if the Court holds that electors have discretion to vote how they wish, the presidential election ballot and election laws would have to quickly change to accommodate the Court’s ruling. Brief of Amici Curie Campaign Legal Center and Issue One (“CLC”), in Support of Respondent at 14. In addition to including the electors’ names on ballots, CLC argues that states will need to adapt their campaign-finance laws. Id. at 14, 21–22. According to CLC, federal campaign-finance and criminal statutes do not apply to electoral corruption. Id. at 21–22. Without any state-imposed restrictions on electors, CLC asserts, presidential candidates could bribe electors and escape liability while undermining faith in the democratic process. Id. at 25–26. These changes, Professor Robert W. Bennett argues in support of Washington, will confuse voter expectations and could have a lasting impact on confidence in the electoral process. Brief of Amicus Curie Robert W. Bennett, in Support of Respondent at 5, 12. For example, he explains that the risk of faithless electors changing the outcome in a presidential election is high: in 2000, five electoral votes determined the outcome of the election, and it would have only taken two faithless electors to keep either major candidate from reaching a majority and from sending the decision in the election to the House of Representatives. Id. at 11–12. Because electors meet forty days after the national popular vote takes place, Professor Bennett concludes that if the electors change the outcome of the election to differ from Election Day results, this could resemble a coup and lead to a “constitutional crisis.” Id. at 12–13.

ELECTOR INDEPENDENCE & STATE INFLUENCE

In support of Chiafalo, Professor Jerry H. Goldfeder argues that presidential electors must remain independent from their states so that they can exercise discretion during modern-day exigencies, such as natural disasters, terrorist attacks, and public health crises. Brief of Amicus Curiae Jerry H. Goldfeder, in Support of Petitioners at 3­–5. Professor Goldfeder presents two circumstances where delegates should be able to exercise discretion: first, if issues arise prior to election day, individual voters may be unable to reach the polls to vote, and therefore, the presidential popular vote may be skewed; and second, if after election day but before the electors meet to cast their votes, circumstances change or an elector obtains information about a presidential candidate that calls into question the candidate’s abilities. Id. at 7–9. For example, if a presidential candidate develops, or finds out that they have, a terminal disease after the national vote but before the electors’ vote, according to Professor Goldfeder, electors must have discretion to break from their states’ preference and alter their votes. Id. at 9.

In contrast, the Republican National Committee (“RNC”) argues that the Framers intended for states to have control over presidential electors, as the constitutional delegates empowered states to select electors in a variety of ways. Brief of Amicus Curiae Republican National Committee, in Support of Respondent at 22. The RNC asserts that, in early presidential elections, states used a variety of methods, including appointing members of certain counties to select electors or selecting electors through state legislatures. Id. According to the RNC, the constitutional delegates’ choice to allow diversity and innovation in methods of selection only works if the states can bind its electors to the chosen method. Id. at 24. In other words, the RNC argues that allowing electors to have unfettered discretion conflicts with the state’s ability to bind the elector to its chosen method: voting in accordance with the state’s popular vote. Id. at 24–25. Campaign Legal Center and Issue One add that changing the states’ traditional role in regulating presidential electors will cast doubt on the democratic process. Brief of CLC at 14.

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Acknowledgments