By Darren Smith, Weekend Contributor
The Washington Supreme Court upheld the imposition of a thousand dollar fine against three Presidential Electors who violated their oath by voting in the Electoral College for candidates other than those winners of the popular vote in the 2016 presidential election. In this latest episode of electioneering in American politics, individuals took it upon themselves to decide who they believed deserved election and not support that of the common voter.
In this case, three electors reportedly perceived that then Candidate Donald Trump would win the election and to at least in a hail Mary type of stunt forestall this by casting their vote for Colin Powell instead of Hillary Clinton who won the state’s popular vote. Pursuant to the Constitution, if a candidate fails to receive an absolute majority of the Electoral College Vote the election is then decided by the House of Representatives, which the electors reportedly perceived would be more conducive to a win by Clinton.
The irony of this action presents itself in the perennial accusations made by incumbent politicians that voters are repressed by the actions of operatives of politicians on the opposite side. And yet, we have that same type of behavior in motion by such party officials, that is to directly negate the will of the ordinary voter.
Strangely, the penalty afforded was only civil in nature and in a comparatively weak fine, as it is the case that a large majority of codified violations of state election laws in Washington are criminal and felonies for that matter.
Here a third of the electors (four of twelve) delegated to Washington abandoned their duty to elect the Clinton ticket. Had instead all twelve voted for the Powell ticket they would have effectively disenfranchised the entirety of the Washington electorate and collectively suffered in total twelve thousand dollars. Twelve thousand dollars! If one looks at it from a restoration of damages, it would seem the value of the integrity of the presidential vote can be quantified at twelve grand.
The Court held the following in their opinion filed In re Guerra:
Justice Madsen—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 I of the United States Constitution, the Twelfth Amendment, and the First Amendment.
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. 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. 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 eaeh, under RCW 29A.56.340, for failing to vote for the nominee of their party.
[The appellants contested the imposition of the fine before an administrative law judge who ruled in favor of the state due to the ALJ’s lack of jurisdiction. Appellants sought review in the Superior Court which certified the case for direct appeal to the Washington Supreme Court.]
The Court relied on historical events manifest with the organization and events concerning the Electoral College. See opinion pages five through eight.
The appellants maintained that Article II, section 1 of the United States Constitution grants each state plenary power to direct the manner and mode of electors to the Electoral College and the Court held that under state election law the civil fine was within that authority. Further, electors do not enjoy the right to exercise absolute discretion on which person for which they choose to cast their vote, expressing that the electors nominated by the Washington Legislature are tasked with conveying the will of the popular vote and not their own.
I would venture to say that not only is the integrity of the election is weakened by these faithless electors, it does not serve the interest of the voter in having weak civil penalties to guarantee the oath of electors. While I am not one to easily call for criminalization of all things objectionable, this is one case that I believe it is warranted.
By Darren Smith
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