Electors Case Update: Round 1 Goes To The State. But The Fight Goes On.

by Jason Harrow, Chief Counsel of Equal Citizens

Last Friday at the state courthouse in Olympia, Washington, Equal Citizens founder Lawrence Lessig argued our case that presidential electors in Washington could not be fined for failing to vote for Hillary Clinton, the candidate that got the most votes in the state. (For background on the case, check out this entry that we posted before the argument.) We got a fair hearing in front of a careful judge who took our claims seriously. And, after listening to the judge’s questioning and taking the State’s legal position head-on, we were very encouraged that the judge might rule in our favor. But, in a very short opinion issued soon after the hearing ended, the judge in the case denied our appeal and upheld the fines imposed by the state.

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. 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.

Here’s what happened last Friday in Olympia.


We arrived at the state courthouse at around 12:45 pm on a gorgeous, crisp afternoon in the Pacific Northwest. As Lessig, co-counsel Jonah Harrison, and I got out of Jonah’s car, we were immediately hit with the fresh Pacific Northwest air. And when we got up to the courthouse and checked the court’s calendar, we saw that our case was the only hearing in front of Washington State Judge Carol Murphy for the entire afternoon. Clear air, clear docket. Does it get better than that?

Several of our clients and supporters met us at the courthouse, and it was fantastic to see them and talk with them. Without their bold efforts last fall in the Electoral College, there would be no case to argue. More importantly, without them, our country would be facing the prospect of another election cycle with no possibility of resolving the important question of whether states may direct the votes of presidential electors. But thanks to our clients, we’re hoping to get a definitive answer to this question before the 2020 election.

Right at 1:30 pm, Judge Murphy took the bench. She said she recognized the importance of the issues and would give each side 30 minutes to argue its position, with the possibility of more time if necessary. That was another good sign: the court was not treating this as a routine appeal from the imposition of a fine. Instead, it knew this case presented a major constitutional issue.

In Lessig’s 30 minutes at the podium, he was able to explain clearly why the State’s fine was illegal. He showed how the text, structure, and history of the Constitution pointed to only one conclusion: while states have the power to appoint electors, they do not have the power to control electors.

Judge Murphy interrupted Lessig periodically with several questions about our case, including to ask why the Washington State could legally require its presidential electors to take a pre-election pledge to support the nominee of their party but couldn’t enforce that pledge through the penalty of a fine. But Lessig was unfazed. As he pointed out, there are many government officials who are asked to make pledges or promises, from judges (“I promise not to overturn Roe v. Wade”) to Congresspeople (“If you elect me, I will vote to get rid of Obamacare”) to U.S. Senators who, early in our history, were appointed to office by state legislators (“I promise to vote against the expansion of slavery.”). But, while these government officials may suffer ethical or moral condemnation if they fail to follow their pledges, no one thinks that their appointing officers can fine them for violating one. And indeed no state has ever fined a presidential elector for casting a vote that allegedly violated state law. Thus, as Lessig said before he sat down, “history is on our side.” This fine was, after all, without any historical precedent.

The attorney for the Washington State presented a very different view. She had two primary arguments. First, she claimed that Washington law does not require electors to vote for a particular candidate — instead, it counted the votes here but imposed a fine — and it therefore cannot infringe any alleged constitutional right to vote. Second, she argued that the fine is not a punishment for exercising a constitutional right but is instead a means of enforcing a pre-election pledge.

Opposing counsel got several questions indicating that the Judge had accepted our historical evidence pointing to the freedom of electors. “Doesn’t the history suggest that this is an individual decision?” the Judge asked. But opposing counsel disagreed, and she said that the electors were merely transmitting the vote of the state to Congress. In fact, the state’s attorney claimed that our clients already had the right to cast a “free” vote when they cast their popular votes in November, with all other voters. Apparently, that was sufficient electoral freedom for one presidential election.

After another round of short exchanges, the argument was over, and Judge Murphy surprised us and announced that she would issue her ruling within an hour of the argument’s end. We felt good, but we all had to acknowledge that Judge Murphy had not tipped her hand either way. She understood the issues and asked fair questions of both sides.

At around 3:30 pm, we got the word that the Judge was ready to return to court and issue an opinion. She began reading her ruling into the record, again without tipping her hand. But then she got to the meat of the opinion: we had not “met our burden,” the judge said, of showing that the law was unconstitutional. Instead, in a very short statement of reasoning that did not mention our specific arguments, cite to any legal precedents, or quote any constitutional provisions, she said that the state had not ordered “specific performance” of the pledge — that is, the State did not require our clients to actually vote for Hillary Clinton for president — and, for unexplained reasons, this fact rendered the State’s actions acceptable. After the Judge signed a very short order rejecting our appeal that had been prepared by the State’s attorneys, she thanked the parties for what she said were good arguments and briefs on both sides and adjourned.

Of course we wanted Judge Murphy to agree with us, and we were all disappointed that she didn’t. But we emerged more determined and encouraged than ever. In particular, our 36 hours of all-in preparation before the argument in Seattle — which included Lessig’s participation in a lengthy moot court with a great team of lawyers who have thought deeply about this issue — helped us refine our arguments, unearth more useful precedents, and think of ways to present the argument even more cogently in our next round of briefing. That hard work certainly paid off during Lessig’s argument, which went very well, even if the Judge ruled against us.

Still, the adverse ruling just reinforces that there is more work to do. From here, we have the option of appealing to the Washington Court of Appeals or taking our case directly to the Washington Supreme Court. Regardless of what court hears our appeal, I already can’t wait to get back up to Olympia to see our clients again and smell the fresh Pacific Northwest air. Next time, I hope to get a whiff of the sweet smell of victory too.