In the latest of a string of litigation surrounding faithless electors, the Washington State Supreme Court has issued its decision in In re Guerra, here. Four electors cast votes for candidates other than Hillary Clinton and Tim Kaine; all four were fined $1000 each pursuant to state law. Three appealed the decision. In an 8-1 decision, the Court upheld the fines.
The Court opens by acknowledging that presidential electors perform a “federal function.” The electors argued that if they are performing a federal function, there is ample case law that suggests that Congress cannot interfere with that activity. But the Court noted that states may still holds power over them under Article II of the Constitution. And while states might not be able to interfere with certain federal functions, the Court understood the precedent of cases like Ray v. Blair and McPherson v. Blacker that the state’s power included “broad authority.” Language from Supreme Court precedent suggested that the role of the elector is to “transmit the vote of the State for president,” (In re Green) “suggesting that the Electoral College vote belongs to the State, not the individual elector.” (p. 17)
Unfortunately, the Court’s interpretation of precedent does not rely as heavily on the text of the Constitution, which states that the electors “shall make distinct lists . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States.” (Amend. XII.) It’s certainly plausible to argue that the state has the power over the electors, but it is a harder textual claim to say that the votes “belong to the state,” whatever Supreme Court precedent may say.
But, the Court also finds that the Twelfth Amendment ensures that electors meet at a time and place, cast votes for two qualified candidates, and that the Amendment “does not limit a state’s authority in adding requirements to presidential electors.” (p. 18) The Court goes on to find that cases like U.S. Term Limits v. Thornton and Powell v. McCormack, which concluded that qualifications could not be added to congressional candidates, do not extend to presidential electors. (There is ample historical support for this practice, as qualifications have regularly been added to electors, including district residency restrictions, which were raised at length in U.S. Term Limits.)
As a textual matter, the court in n.8 rejects the notion that the word “ballot” implies “personal, secret ballot.” It points out that historically, the fact that “faithless electors” can be identified suggests the practice of casting ballots has not always been in secret. I think that’s an accurate understanding of the word “ballot,” a project I’m working on.
The Court rejects a First Amendment claim once it finds that there is no personal right of the elector.
A brief dissent argues that the “power to appoint” is not the “power to control.,” and it cites Justice Jackson’s concerns in his dissent in Ray v. Blair.
In short, it’s a fairly unsurprising outcome, but it leaves some deep uncertainty, I think, about how the United States Supreme Court’s precedents in this area harmonize with the text of the Constitution. For instance, some precedent—and this court’s opinion—conflate “state” with “legislature,” where the “legislature” is the entity empowered to “direct” the “manner” of “appoint[ing]” electors.
If the case is appealed to the United States Supreme Court, it also presents an interesting wrinkle—the electors here are not forbidden from casting “faithless votes,” but are only fined if they do so. That’s a less onerous (but still significant) consequence than replacing faithless electors, like what occurred in Colorado.