An important case about the role of presidential electors heads to court in Washington

by Jason Harrow, Chief Counsel of Equal Citizens

At Equal Citizens, we’re trying to reform the Electoral College. One critical way to improve it is to force states to stop throwing away meaningful votes by awarding all of their electors on a winner-take-all basis; that’s what our Equal Votes project is about. But, while we gear up to file those cases, we’re involved in an important hearing this week on another, related issue: whether electors have a constitutional right to vote for the people they think would make the best president and vice-president, or whether states can force them to cast their vote for particular candidates.

The issue arose last fall when several electors attempted to cast votes for someone who didn’t win the popular vote in their state, in the hope that a Republican other than now-President Trump would take office. Their efforts did not have that result, but they forced many observers to acknowledge the importance of this unresolved constitutional question. Here’s some background on the case and what’s happening on Friday, December 8th.

  1. What is a presidential elector?

Here’s a surprising constitutional nugget: you and I and everyone you know — unless you know someone who has served as a presidential elector — do not technically have any votes for president and vice-president. Instead, our Constitution gives presidential votes only to a very select group of so-called “electors.” States appoint a number of these special electors equal to the number of Senators and Representatives each state gets. Under this system, Wyoming and other low-population states (and DC) each get to appoint 3 presidential electors, California gets 55 electors, and the other states get some amount in between.

These electors aren’t just mathematical placeholders. Instead, they’re actual people who meet in their state capitols on the first Monday after the second Wednesday in December — Congress really knows how to pick dates, huh? — and physically cast votes for president and vice-president. It is those electoral votes, and not the ones that everyday citizens actually cast on election day in November, that get formally transmitted to Congress and then counted on January 6 to determine who gets to be president.

We don’t hear about electors very often because they are not expected to exercise much discretion. Instead, most of the public expects that every elector in every state will cast a presidential vote for the candidate who receives the most popular votes in the state on election day. That was true in 2016 just has it been true in all recent elections. (One technicality: There are two electors in Maine and two in Nebraska who are expected to vote for the candidate who receives the most popular votes in a particular congressional district, not in the entire state, but that doesn’t change any of the principles in this post.)

2. What happened last fall in the Electoral College?

The outcome of the 2016 election had several unique features that got a few electors thinking about their typical role as rubber stamps for the popular vote in their state. First, President Trump lost the popular vote by a greater margin than any president who had previously prevailed in the Electoral College. Second, President Trump was, in the views of some, uniquely unqualified and unfit for office. And third, after the popular votes were tallied but before the electors cast their votes, news broke that Russia may have had a greater role in meddling in the election than many had previously thought.

This confluence of factors gave rise to a movement of electors who attempted to use their position to ensure that Donald Trump would not become president. They called themselves the “Hamilton Electors,” and they were led by Colorado elector Michael Baca and Washington elector Bret Chiafalo. Together, they tried to persuade a total of 270 electors to cast their electoral votes in December for a compromise candidate — most likely a moderate Republican — who would be elected president instead of Donald Trump. They recognized that this was an extraordinary act, but they thought this had been an extraordinary election. As Chiafalo said, the Hamilton Electors were “trying to be that ‘break in case of emergency’ fire hose that’s gotten dusty over the last 200 years.”

Ultimately, they did not get enough electors to vote for a candidate other than Trump or Clinton to change the outcome; Trump got enough electoral votes to be elected president. But several electors voted for someone other than those two candidates, and several others would have voted for another candidate but were unable to do so because of removal or the threat of removal from the office of elector. This January, Congress ultimately counted seven votes that were successfully cast in state capitols for these “none of the above” candidates: Colin Powell got three electoral votes, and Bernie Sanders, John Kasich, Ron Paul, and Faith Spotted Eagle (a Native American activist) each received one. That was the legal result of the 2016 presidential election.

One major impediment in the Hamilton Electors’ campaign to change the outcome in the Electoral College was the fact that many states have laws that purport to require their electors to vote for the candidate who received the most votes in a state. But the Supreme Court has never decided whether these laws are constitutional. Even though the 2016 election is over, we still think it is important that this question be answered.

3. What’s happening on Friday, December 8th?

On Friday, December 8th, the issue of elector freedom gets its first major hearing since the electoral votes were counted in 2016. The case, called Guerra v. Washington State, involves three Washington State electors who voted for Colin Powell and not Hillary Clinton, even though Clinton won the most popular votes in the state. The state imposed fines of $1,000 per elector for not voting the way state law requires. The electors argue that imposing the fines is unconstitutional because presidential electors have a constitutional right to cast their votes for whomever they choose.

The hearing will be held before a single trial court judge in state court in Olympia, Washington, and we expect to get a written ruling sometime after the hearing. We’ll let you know how it goes. In the meantime, you can read the briefs in the case here. Legal historian Rob Natelson wrote an in-depth article series on the history of the electoral college, and you can read his first post addressing the question of the freedom of presidential electors here.

We think there are good arguments about why the Constitution requires electors to have freedom of choice. If we lose, though, we’ll appeal to the state appellate court, which is called the Washington Court of Appeals. From there, an appeal could go to the Washington Supreme Court, and finally, an appeal by either side could go to the U.S. Supreme Court.

Regardless of anyone’s views on the matter, the 2016 events show that the Supreme Court should resolve the important question of whether states can require presidential electors to vote for particular candidates, before the action of any future elector creates a constitutional crisis. We hope the Supreme Court will do so before the next presidential election in 2020.

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