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In re Guerra

Supreme Court of Washington, En Banc

May 23, 2019

In the Matter of LEVI GUERRA, ESTHER V. JOHN, and PETER B. CHIAFALO, Appellants.

          MADSEN, J.

         Appellants Levi Guerra, Esther John, and Peter Chiafalo moved for direct appeal of a Thurston County Superior Court decision upholding the imposition of a $1, 000 fine for failing to cast their votes in the United States Electoral College in . accordance with the popular vote in the State of Washington. They argue the fine is a violation of article II, section 1 of the United States Constitution, the Twelfth Amendment, and the First Amendment.

         For the reasons below, we reject appellants' argument and affirm the trial court.


         Background Facts

         Under Washington State election law RCW 29A.56.320, each political party with presidential candidates is required to nominate electors from its party equal to the number of senators and representatives allotted to the state. People nominated are required to pledge to vote for the candidate of their party.[1], [2] Should nominees choose not to vote for their party candidate, they may be subject to a civil penalty of up to $ 1, 000. See RCW 29A.56.340. The people of the state do not vote for presidential electors. Rather, they vote for presidential candidates. The nominees of the party that wins the popular vote are appointed by the legislature to be Washington State's presidential electors. Along with all but two other states, Washington has a "winner-take-all" electoral system.

         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.[3] 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 each, under RCW 29A.56.340, for failing to vote for the nominee of their party.[4]

         Procedural Facts

         Appellants appealed their fines to an administrative law judge (ALJ), arguing the fines were unconstitutional. Having no authority to rule on constitutional matters, the ALJ upheld the imposition of the fine, and appellants appealed to the Thurston County Superior Court.

         The appeal was heard before Judge Carol Murphy of the Thurston County Superior Court. In affirming the secretary of state, the trial court noted the fine was constitutionally permissible because "[t]he State is not adding a qualification, nor is the State here requiring specific performance of the pledge." Verbatim Report of Proceedings at 49. Appellants timely filed a notice of appeal and filed a motion for direct review in this court.


         State Authority under the Constitution

         Appellants claim that as presidential electors, they perform a federal function. Further, they contend that electors are intended to exercise independent judgment in casting their ballots and that imposition of a fine by state law for failing to vote in a particular way interferes with a federal function in violation of the Constitution.

         Electors rely heavily on the origins of the Electoral College, so we begin there. When the Electoral College was first created, there were a number of competing proposals for selecting the executive. Some delegates to the Constitutional Convention of 1787 proposed that the national legislature should select the president. See Matthew J. Festa, The Origins and Constitutionality of State Unit Voting in the Electoral College, 54 VAND. L. REV. 2099, 2109-10 (2001). Initially, this proposal generally enjoyed agreement. Id. at 2109. However, some feared that entrusting selection of the executive to the legislative branch would compromise the independence of the executive branch. Id. at 2110. As an alternative, one delegate suggested that the president be appointed by the people. Id. He also suggested a system that divided the states into districts with an elector being appointed in each district who would then elect the president.

         As the debates continued, the two significant, competing proposals were direct popular election and appointment of the executive by Congress. Id. at 2112-13. The idea of a national vote gained support among the delegates due to strong concerns about the legislative branch appointing the executive. Id. at 2113. James Madison advocated for the national vote, but delegates from the small states objected, seeing it as disadvantageous for their states. Id. at 2114. When the delegates appeared deadlocked, a committee with one representative from each state was tasked with finding a reasonable solution. Id. at 2115. Ultimately, the committee returned with a proposal similar to today's Electoral College system-the president would be selected by a number of electors, based on the number of members of Congress each state was entitled to, who would be appointed by their respective states in such manner as they see fit. Id. at 2116. The system was later revised so that in the event of a runoff election, the president would be selected by the House of Representatives and the vice-president would be elected by the Senate. Id. at 2119.

         When gathering support for ratification of the Constitution, Alexander Hamilton later wrote about the system agreed to in the convention and how it operated. See THE FEDERALIST NO. 68 (Alexander Hamilton). Hamilton noted the importance of having the president elected by "men most capable of analyzing the qualities adapted to the station." Id. "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation." Id. He opined that selecting several electors to nominate the president would be more prudent than having just one elector nominating the president. Similarly, having the electors vote secretly by ballot and within their respective states would serve to obstruct "cabal, intrigue, and corruption" from entering the electoral process. Id.

         The Electoral College system was adopted in article II, section 1 of the Constitution and limits the number of electors from each state to the number of senators and representatives allocated to the state. U.S. CONST, art. II, § 1, cl. 2. Additionally, no senator, representative, or persons holding federal offices of trust or profit could be selected as electors. Id.

         The manner of appointment of electors was left to the states. In the first presidential election, the majority of states decided their respective state legislatures would appoint electors to the Electoral College. See Jerry H. Goldfeder, Election Law and the Presidency: An Introduction and Overview, 85 FORDHAM L. REV. 965, 968 (2016). Now, every state nominates electors through the popular vote. See id. Every state except for Maine and Nebraska employs a winner-take-all method of allocating elector votes. Id.

         The initial Electoral College system was not without its flaws. The greatest problem was that the Constitution did not require electors to vote for a president and vice-president separately. This oversight manifested in the presidential election of 1800. John Adams picked Charles Pinckney as his running mate, while Jefferson chose Aaron Burr. Id. at 975. Jefferson and Burr both received 73 electoral votes even though Bun-was running for vice-president. Id. As a result of the tie, the presidential election was sent to the House of Representatives. Id. To prevent a recurrence of the problem, the Twelfth Amendment was passed, requiring electors to cast one vote for the president and one vote for vice-president. U.S. CONST, amend. XII.

         Historically, the Electoral College has been largely a formality, as generally the electors would cast their votes consistent with the popular vote of their respective state. See Norman R. Williams, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of' Subconstitutional Change, 100 GEO. L.J. 173, 182 (2011). Indeed, even at the outset, "presidential electors were understood to be instruments for expressing the will of those who selected them, not independent agents authorized to exercise their own judgment." Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 ARIZ. L. REV. 903, 911 (2017). However, there have been instances where an elector voted for another candidate. Williams, supra, at 182. Today most states require some form of pledge by electors to vote for a particular party's candidate, and a number of states also have adopted ramifications should an elector vote contrary to that pledge. Id. at 182 & n.36. Neither article II, section 1, nor the Twelfth Amendment addresses electors' discretion in casting their votes.[5]

         Against this backdrop, appellants first argue that because the Court in Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934), held the electors in the Electoral College perform a federal function when casting their ballots, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), precludes the State from imposing a fine because it unconstitutionally interferes with a federal function. Br. of Appellants at 9.

         Burroughs is one of the earliest cases where the Supreme Court has held presidential electors perform a federal function when casting their votes in the Electoral College. In Burroughs, the petitioners were charged with multiple counts of violating the Federal Corrupt Practices Act, 2 U.S.C. §§ 241-256. The act was the first comprehensive campaign reform statute and required that federal candidates disclose financial information. Burroughs, 290 U.S. at 540-42. The ...

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