In the Matter of LEVI GUERRA, ESTHER V. JOHN, and PETER B. CHIAFALO, 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
reasons below, we reject appellants' argument and affirm
the trial court.
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.,  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.
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.
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. 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
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.
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.
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.
Authority under the Constitution
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.
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.
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.
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.
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
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.
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.
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
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.
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 ...