By Jason Harrow
Last week, Equal Citizens founder Larry Lessig and I made a two-hop trip to Olympia, Washington and then Denver, Colorado to present argument in two appeals presenting the same important, unresolved question: can states require that presidential electors vote for the state’s popular vote winner, or are they free to depart from it? In over two hundred years, the U.S. Supreme Court has never answered the question, and it’s high time it does before the ambiguity leads to a constitutional emergency.
We represent two sets of 2016 Democratic presidential electors who did not vote for Hillary Clinton in the Electoral College, and it’s our view that their rights were infringed when they were either fined (Washington) or removed from office (Colorado) for their vote. Our argument is simple: the Constitution is clear that Presidential electors are required to be “choosers,” not mere agents or clerks. And when they perform their important, though short, job of voting for President and Vice President, they exercise a federal function that is specified by the Constitution, and the states have no power to interfere with or control that function. As we explained in our briefs, our argument relies on key constitutional text, the unambiguous original understanding, and consistent history regarding the role of electors. Our view also affirms the system of separated powers that our Framers intended.
Larry argued the first case up, on January 22 in Washington in front of nine elected state justices of the Washington Supreme Court. While he made substantial progress trying to explain to the court the difference between the power to appoint, which the state has, and the power to control, which it lacks, he did get substantial pushback from many of the judges. The Chief Justice of that court in particular seemed worried that elector freedom would undermine the will of the people as expressed through the popular vote, and she thought her state had the power to supposedly “enforce” that popular will. As Larry explained, though, if they try to control the vote of the elector, they infringe on a core federal function that the Constitution leaves to electors. The Chief Justice suggested (surprisingly) that electors could be considered to be “free” even if their vote could be fined. But of course, it has been constitutional law 101 since the founding that if someone is exercising a federal function, they can’t be taxed by the state for the choice they make. In the most famous of those cases, McCulloch v. Maryland (1819), the Bank of the United States (exercising a federal function) was technically free to distribute its bills in Maryland; Maryland just claimed the power to tax them. Freedom, the Court held, meant “for free.”
You can watch the entire argument here, via Washington Public Television.
Our argument got a warmer reception two days later in the federal Court of Appeals for the Tenth Circuit in Denver, Colorado. I argued there, and at least two of the three judges seemed to fully grasp the core federal function point that we were making. Indeed, one of the judges even explained to the state’s lawyer that the original goal of the electoral college was to prevent a presidential election by, as she called it, the “unwashed masses”; the election was instead left to a small group of people with the discretion to vote their preferences. And, while states could go a long way toward encouraging those electors to vote for the same candidate that won the popular vote, ultimately, states cannot coerce such a vote. That argument was not videotaped, but you can listen to it here.
Now, we wait. There is no required time for either court to make a decision, but we are hopeful we’ll get decisions from both courts sometime later this year.
In both cases, both courts need to wrestle with the conflict between what the Constitution is, and what we might want the Constitution to be. We took this case originally because we believed that question needed to be resolved before it created a constitutional crisis. And while there are many who like the discretion built into the system of the Electoral College, we certainly understand the view of many (including many of these judges) that we want the Electors to reflect the vote of the People. Of course, our plaintiffs each believed that by working to give the House of Representatives an opportunity to vote for a Republican other than Donald Trump, they were giving their voters what their voters would have wanted. But whether you agree with that choice or not, the fact is, we believe, that our Constitution gave them a constitutional discretion which no state (or Congress) has the power to control.
These cases would not be where they are without the courage of our two sets of former presidential elector plaintiffs: Bret Chiafalo, Levi Guerra, and Dove John in Washington, and Mike Baca, Polly Baca, and Bob Nemanich in Colorado. Nor would they have gotten this far without co-counsel Jonah Harrison and Sumeer Singla in Washington and Jason Wesoky in Colorado. We are grateful to them, and to our amici who wrote excellent friend-of-the-court briefs in both cases, explaining the history in depth. Thanks to all.
Jason Harrow is Chief Counsel for Equal Citizens.