In re Guerra , 193 Wash. 2d 380 ( 2019 )

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IN CLERKS OFFICE X
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Susan L. Carlson
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of No. 95347-3
LEV! GUERRA,ESTHER V. JOHN, and En Banc
PETER B. CHIAFALO,
Appellants. Filed MAY 2 31019
J
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 I 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.
No. 95347-3
FACTS
Background Facts
Under Washington State election law ROW 29A.56.320, each political party with
presidential candidates is required to nominate eleetors 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 oftheir party. Should nominees ehoose not to vote for
their party eandidate, they may be subject to a civil penalty of up to $1,000. See ROW
29A.56.340. The people of the state do not vote for presidential eleetors. Rather, they
vote for presidential candidates. The nominees ofthe 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.
'ROW 29A.56.320 covers how electors are nominated. It reads:
In the year in which a presidential election is held, each major political party and
each minor political party or independent candidate convention that nominates
candidates for president and vice president of the United States shall nominate
presidential electors for this state. The party or convention shall file with the
secretary of state a certificate signed by the presiding officer of the convention at
which the presidential electors were chosen, listing the names and addresses of
the presidential electors. Each presidential elector shall execute and file with the
secretary of state a pledge that, as an elector, he or she will vote for the candidates
nominated by that party. The names of presidential electors shall not appear on
the ballots. The votes cast for candidates for president and vice president of each
political party shall be counted for the candidates for presidential electors of that
political party; however, if the interstate compact entitled the "agreement among
the states to elect the president by national popular vote," as set forth in RCW
29A.56.300, governs the appointment ofthe presidential electors for a presidential
election as provided in clause 9 of Article III of that compact, then the final
appointment of presidential electors for that presidential election shall be in
accordance with that compact.
^ Appellants do not challenge the requirement that electors pledge to vote for the candidates who
win the popular vote.
No. 95347-3
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 ofthe electoral votes. On December 29, 2016, the
^ During the 2016 election, seven presidential electors across the country voted for someone other
than their pledged candidate. Four of these "faithless electors" were a part of Washington State's
contingency to the Electoral College. See Kiersten Sehmidt & Wilson Andrews, A Historic
Number ofElectors Defected, and Most Were Supposed to Votefor Clinton, N.Y. Times(Dec. 19,
2016), https://www.nytimes.eom/interactive/2016/12/19/us/elections/electoral-college-
results.html.
No. 95347-3
Washington secretary of state fined appellants $1,000 eaeh, under RCW 29A.56.340, for
failing to vote for the nominee oftheir party.
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 ofthe fine, and appellants appealed to the Thurston County
Superior Court.
The appeal was heard before Judge Carol Murphy ofthe Thurston County Superior
Court. In affirming the secretary of state, the trial court noted the fine was
constitutionally permissible beeause "[t]he State is not adding a qualifieation, nor is the
State here requiring specifie performance ofthe pledge." Verbatim Report ofProceedings
at 49. Appellants timely filed a notice of appeal and filed a motion for direct review in
this court.
RCW 29A.56.340 outlines the procedure for casting electoral votes and the penalty for failing to
vote for the nominee of the elector's party. It reads:
The electors of the president and vice president shall convene at the seat of
government on the day fixed by federal statute, at the hour of twelve o'clock noon
ofthat day. If there is any vacancy in the office of an elector occasioned by
death, refusal to act, neglect to attend, or otherwise, the electors present shall
immediately proceed to fill it by voice vote, and plurality of votes. When all of
the electors have appeared and the vacancies have been filled they shall constitute
the college of electors of the state of Washington, and shall proceed to perform
the duties required ofthem by the Constitution and laws ofthe United States. Any
elector who votesfor a person or persons not nominated by the party ofwhich he
or she is an elector is subject to a civil penalty ofup to one thousand dollars.
(Emphasis added.)
No. 95347-3
ANALYSIS
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 independentjudgment 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 ofthe Constitution.
Electors rely heavily on the origins ofthe 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 ofState 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 ofthe executive to the legislative
branch would compromise the independence ofthe executive branch. M. 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
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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 11, 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. 11, § 1, cl. 2. Additionally, no
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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 ofthe tie, the presidential election was
sent to the House of Representatives. Id. To prevent a recurrence ofthe 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 ofSubconstitutional Change, 100 Geo.L.J. 173, 182
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No. 95347-3
(2011). Indeed, even at the outset,"presidential electors were understood to be
instruments for expressing the will ofthose who selected them, not independent agents
authorized to exercise their own judgment." Keith E. Whittington, Originalism,
Constitutional Construction, and the Problem ofFaithless 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.^
^ Article II, section 1 ofthe Constitution reads, in part:
Each state shall appoint, in such manner as the legislature thereof may
direct, a number of electors, equal to the whole number of senators and
representatives to which the state may be entitled in the congress: but no senator
or representative, or person holding an office of trust or profit under the United
States, shall be appointed an elector.
The Twelfth Amendment reads:
The electors shall meet in their respective states and vote by ballot for president
and vice president, one of whom,at least, shall not be an inhabitant ofthe same
state with themselves; they shall name in their ballots the person voted for as
president, and in distinct ballots the person voted for as vice president, and they
shall make distinct lists of all persons voted for as president, and of all persons
voted for as vice president, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the government of the
United States, directed to the president of the senate; the president ofthe senate
shall, in the presence of the senate and house of representatives, open all the
certificates and the votes shall then be counted; the person having the greatest
number of votes for president, shall be the president, if such number be a majority
of the whole number of electors appointed; and if no person have such majority,
then from the persons having the highest numbers not exceeding three on the list
ofthose voted for as president, the house of representatives shall choose
immediately, by ballot, the president. But in choosing the president, the votes
shall be taken by states, the representation from each state having one vote; a
quorum for this purpose shall consist of a member or members from two-thirds of
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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 ofthe 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 petitioners challenged the indictment,
arguing in part that the act contravened article II, section 1 ofthe Constitution. Id. at 542.
While the court noted,"[PJresidential electors are not officers or agents ofthe
federal government, they exercise federal functions under, and discharge duties in virtue
the states, and a majority of all the states shall be necessary to a choice. And if
the house of representatives shall not choose a president whenever the right of
choice shall devolve upon them, before the fourth day of March next following,
then the vice president shall act as president, as in the case ofthe death or other
constitutional disability of the president. The person having the greatest number
of votes as vice president, shall be the vice president, if such number be a
majority ofthe whole number of electors appointed, and if no person have a
majority, then from the two highest numbers on the list, the senate shall choose
the vice president; a quorum for the purpose shall consist of two-thirds of the
whole number of senators, and a majority ofthe whole number shall be necessary
to a choice. But no person constitutionally ineligible to the office of president
shall be eligible to that of vice president ofthe United States.
No. 95347-3
of authority conferred by, the Constitution ofthe United States, the Court determined
that Congress enacted the Federal Corrupt Practices Act to "preserve the purity of
presidential and vice presidential elections." Id. at 545 (citation omitted), 544. It did not
"interfere with the power of a state to appoint electors or the manner in which their
appointment" was made and was enacted only to address "political committees organized
for the purpose of influencing elections in two or more states. Id. at 544. The statute in
no sense invades any exclusive state power." Id. at 545.
In McCulloch, Congress passed an act to incorporate a national bank. Maryland
subsequently passed a law that imposed a tax on all banks in the state. See 17 U.S. at 425.
When the tax was challenged, the State argued that Congress did not have the authority to
create a national bank, and the states have the authority to tax such an institution. Id. at
400. The Court engaged in a lengthy discussion of whether Congress had the authority to
create a national bank. Congress, the Court held, has the power to "lay and collect taxes;
to borrow money; to regulate commerce; to declare and conduct a war; and to raise and
support armies and navies." Id. at 407. Although not expressly enumerated in the
Constitution, the Court held the necessary and proper clause allowed Congress to pursue
means that are necessary to the advancement of its enumerated powers. Id. at 418-20.
Thus, the Court held the incorporation ofthe national bank was constitutional. Id. at 423-
24.
The national government, in being given the power to create the national bank, also
impliedly wielded the "power to preserve" said creation. Id. at 426. Therefore, a "power
to destroy, if wielded by a different hand, is hostile to, and incompatible with these
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powers to create and to preserve." Id. The Maryland tax on banks at issue, the Court
held, is a power that"may be exercised so as to destroy [the bank]." Id. at 427. Although
states have a right to tax the people and their property,"[t]he sovereignty of a state
extends to everything which exists by its own authority, or is introduced by its
permission." Id. at 429. The power to create a national bank however, was "not given by
the people of a single state" but, rather,"given by the people ofthe United States." Id.
"[A] single state cannot confer a sovereignty which will extend over them." Id.
Maryland, therefore, could not tax the national bank, as it interfered with a federal
function.
Appellants cite a number of examples of state actions that courts have held
interfere with a federal function. In Goodyear Atomic Corp. v. Miller, the issue was
whether a state could subject a federal nuclear production facility operated by a private
entity to a workers' compensation provision for violating a state safety regulation. 486
U.S. 174, 178, 108 S. Ct. 1704, 100 L. Ed. 2d 158 (1988). The complainant in that case
was injured while performing routine maintenance work at the plant. Id. at 176. He was
awarded $9,000 in workers' compensation. Id. The complainant then filed for an
additional award under state law, which provides additional compensation when an
employer fails to comply with the state's safety requirements. Id.
The Court stated that "federal installations are shielded by the Supremacy Clause
from direct state regulation unless Congress provides 'clear and unambiguous'
authorization for such regulation." Id. at 180 (quoting Envtl. Prot. Agency v. State Water
Res. ControlBd, 426 U.S. 200, 211, 96 S. Ct. 2022,48 L. Ed. 2d 578 (1976)). However,
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the Court dismissed the issue of whether a supplemental workers' compensation award is
a direct regulation by the states because "[the relevant federal statute] provides the
requisite clear congressional authorization for the application ofthe provision to workers
at the Portsmouth facility." Id. at 182. Thus, the Court held that the private contractor
could be subject to a supplemental workers' compensation award under state law.
Appellants here rely on this case for the principle that a state may not "dictate the manner
in which the federal function is carried out." Id. at 181 n.3.
Similarly, courts have struck down actions taken under state constitutional
provisions when they unconstitutionally interfere with federal functions. In Hawke v.
Smith, the issue was whether the people of a state could use popular referendum to veto
the state legislature's ratification of the Eighteenth Amendment. 253 U.S. 221, 224-25,
40 S. Ct. 495, 64 L. Ed. 871 (1920). In the state's constitution, any proposed amendment
to the Constitution ratified by the General Assembly was also subject to a referendum by
the people. Id. at 225. The Court held that "[t]he determination of the method of
ratification is the exercise of a national power specifically granted by the Constitution;
that power is conferred upon Congress, and is limited to two methods, by action of the
legislatures of three-fourths of the States, or conventions in a like number of States." Id.
at 227. "[T]he power to ratify a proposed amendment to the Federal Constitution has its
source in the Federal Constitution." Id. at 230. If the Constitution wished direct action
by the people, it would have been explicit in doing so. See id. at 228 (citing U.S. CONST,
art. I, § 2).
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In Lbsct v. Gcifnett, the State of Maryland challenged the validity of the
Nineteenth Amendment. 258 U.S. 130, 136,42 S. Ct. 217,66 L. Ed. 505 (1922). The
State had refused to ratify the proposed amendment. Id. The plaintiffs argued that
several states have state constitutional provisions that render their legislatures
ratifications invalid.^ Id. at 136-37. As stated in Hawke,the Leser Court held that "the
function of a state legislature in ratifying a proposed amendment to the Federal
Constitution, like the function of Congress in proposing the amendment, is a federal
function ... and it transcends any limitations sought to be imposed by the people of a
State." Id. at 137.
Finally, appellants argue this court has also recognized the federal function
principle. In Department ofLabor & Industries v. Dirt & Aggregate, Inc., this court held
that state law cannot subject a federal subcontractor in a national park to its regulations.
120 Wash. 2d 49, 52-53, 837 P.2d 1018 (1992). The department in that case sought to
enforce provisions ofthe Washington Industrial Safety and Health Act of 1973
(WISHA), chapter 49.17 RCW,in the boundaries of a national park. The appellees in
that case had constructed a road within the park, and the department conducted noise and
air testing at the site solely under the authority of WISHA. 120 Wash. 2d at 50. A
Washington State statute had ceded "'[ejxclusive jurisdiction ... to the United States
over and within all the territory ... set aside for the purposes of a national park.'" Id. at
52(quoting RCW 37.08.200 (formerly Rem. Rev. Stat. § 8110)). Because exclusive
® It is unclear what specific state constitutional provisions were alleged to invalidate legislatures'
ratification of the Nineteenth Amendment.
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jurisdiction now lay in Congress, we reasoned that "state regulation of activities within
the federal enclave may resume only with the express permission of Congress. Id. at 53.
Although the department argued the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678, and a WISHA operational status agreement with the secretary of
labor granted it authority, we disagreed, holding that nothing in the language
"constitute[s] a specific and unambiguous grant of authority." Id. at 54. Based on the
above line of cases, appellants argue the imposition ofthe fine in this case constitutes
state interference of a federal function and should be struck down.
The State does not dispute that presidential electors perform a federal function
when casting a vote in the Electoral College. See Br. of Resp't at 12-13. Instead, the
State argues that article II, section 1 of the Constitution grants to state legislatures
plenary power to appoint electors and determine the manner in which their appointment
shall be made, and the fine falls within that broad grant of authority. Id. at 8. The State
argues that Ray v. Blair, 343 U.S. 214,72 S. Ct. 654,96 L. Ed. 894(1952), McPherson v.
Blacker, 146 U.S. 1, 35, 13 S. Ct. 3, 36 L. Ed. 869(1892), and Burroughs support its
position.
The issue in Ray, 343 U.S. at 217-18, was whether a state statute requiring electors
to pledge their votes to a specific party candidate was unconstitutional. The Supreme
Court of Alabama struck the provision down, holding that the pledge was in violation of
article II, section 1 and the Twelfth Amendment to the Constitution. Id. at 223. The
Court disagreed, holding that nothing in the Constitution prohibits an elector from
"announcing his choice beforehand, pledging himself." Id. at 228. The Court went on to
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note,"History teaches that the electors were expected to support the party nominees.
Experts in the history of government recognize the long-standing practice." Id. at 228-29
(footnote omitted); see also id. at 228-29 rm.15-16. Indeed, the Court held that while
presidential electors exercise a federal function,"they are not federal officers or agents
any more than the state elector who votes for congressmen. They act by authority of the
state that in turn receives its authority from the Federal Constitution." Id. at 224-25. Ray
supports the State's position that nothing in the plain language of either constitutional
provision prohibits a state from imposing certain conditions on electors as a part ofthe
state's appointment powers, including requiring electors to pledge their votes.
In McPherson,the Court recognized that "the appointment and mode of
appointment of electors belong exclusively to the States under the Constitution of the
United States." 146 U.S. at 35. In that case, at issue was whether Michigan's legislature
could require that presidential electors he nominated by congressional district rather than
by popular vote. Id. at 24-25. The Court upheld the legislation stating:
If the legislature possesses plenary authority to direct the manner of
appointment, and might itself exercise the appointing power byjoint ballot
or concurrence of the two houses, or according to such mode as designated,
it is difficult to perceive why,if the legislature prescribes as a method of
appointment choice by vote, it must necessarily be by general ticket, and
not by districts.
Id. at 25. The Court noted that the State "acts individually through its electoral college
[and] by reason ofthe power of its legislature over the maimer of appointment,the vote of
its electors may be divided." Id. at 27. The Constitution does not provide how electors
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shall be appointed, leaving it exclusively to the legislature to define the method of
appointment. Id.
Also relying on Burroughs, the State argues that although the electors perform a
federal function, that Court also noted that the State has exclusive power in appointing
electors and the manner in which their appointment shall be made. See 290 U.S. at 544-
45. As discussed in Burroughs, the only power left to Congress is '"the time of choosing
the electors, and the day on which they shall give their votes.'" Id. at 544(quoting U.S.
Const, art. II, § 1). Moreover, in In re Green, the Court stated the "electors for President
and Vice President in each State are appointed by the State in such manner as its
legislature may direct." 134 U.S. 377, 379, 10 S. Ct. 586, 33 L. Ed. 951 (1890). "The
sole function ofthe presidential electors is to cast, certify and transmit the vote ofthe
State for President and Vice President of the nation." Id. (emphasis added).
The State has the better argument. In each case cited by appellants, the authority
that purportedly interfered with the federal function lay not in the states, but rather in
Congress. Thus, the threshold issue was whether the State had been given authority to
engage in activity that was specifically conferred to the federal government. For example,
in McCulloch, the issue was whether a state had the authority to tax a national bank. The
Court essentially held that states were not granted the authority to regulate national
corporations. A national corporation is a creation unique to the federal government under
the necessary and proper clause to carry out one of Congress's enumerated powers. The
Constitution does not confer any authority on the states to interfere or control that manner.
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Similarly, in Hawke and Leser, the Court reasoned that the Constitution does not
grant to the people of the states the authority to interfere with the ratification of
constitutional amendments. Instead, that power was specifically conferred to the
legislatures ofthe states to ratify. That same reasoning was followed by this court in Dirt
& Aggregate where we held there was no explicit grant of authority by Congress for the
states to regulate in federal parks. Contrast this with Goodyear Atomic where Congress
explicitly granted the states authority to enforce their own workers' safety regulations in
conjunction with the federal workers' compensation statutes.
Unlike the cases appellants rely on for support that states cannot interfere with a
federal function, here, the Constitution explicitly confers broad authority on the states to
dictate the manner and mode of appointing presidential electors. Indeed, Ray undermines
the position of appellants because, as noted, the Court there upheld the state s pledge
requirement as constitutional. While appellants argue that Ray is limited to the primary
election, the Court's holding clearly demonstrates the broad grant of authority to the states
under article II, section 1. Burroughs and McPherson also reinforce the principle that the
manner of appointment is exclusive to the states. As the Court in In re Green explained,
the role of the elector is to "transmit the vote of the State for President," suggesting that
the Electoral College vote belongs to the State, not the individual elector. 134 U.S. at
379.
Finally, nothing in article II, section 1 suggests that electors have discretion to cast
their votes without limitation or restriction by the state legislature. To the extent that the
federal functions of the electors are mentioned in the Constitution, they are found in the
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Twelfth Amendment. The Twelfth Amendment simply requires the electors to meet at the
specified date and time outlined by Congress and to cast two votes for qualified
candidates—one for president and one for vice-president. The Constitution does not limit
a state's authority in adding requirements to presidential electors, indeed, it gives to the
states absolute authority in the manner of appointing electors. Thus, it is within a state's
authority under article II, section 1 to impose a fine on electors for failing to uphold their
pledge, and that fine does not interfere with any federal function outlined in the Twelfth
Amendment.
Elector Discretion
Auxiliary to the federal function argument above, appellants argue that electors
were intended to exercise discretion when casting votes in the Electoral College.^ "[I]t
was supposed that the electors would exercise a reasonable independence and fair
judgment in the selection of the Chief Executive." McPherson, 146 U.S. at 36.
Appellants cite to a few cases as persuasive. See Op. ofJustices, 250 Ala. 399,400,34
So. 2d 598(1948)(proposed amendment to statute that required electors to "cast their
ballots for the nominee of the national convention of the party by which they were
elected" was likely unconstitutional); Breidenthal v. Edwards, 57 Kan. 332,46 P. 469
(1896)(candidate has no right to dictate how his name is to be placed on the electoral
ticket); Order of U.S. Court of Appeals, Baca v. Hickenlooper, No. 16-1482, 2016 U.S.
^ Appellants argue Hamilton's Federalist Papers supports the framers intended the electors to
exercise discretion as they would have the '"information and discernment' necessary to choose a
wise President." Br. of Appellants at 16(quoting The Federalist No.68(Alexander
Hamilton)); see supra p. 6.
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App. LEXIS 23391 (10th Cir. Dec. 16, 2016)(denying motion for injunetion because
plaintiffs failed to show they had a likelihood of successfully appealing). These cases,
appellants argue, support their position that state legislatures are without authority to
'"restrict the right [to vote] of a duly elected elector.'" Br. of Appellants at 19-20
(alteration in original)(quoting Op. ofJustices, 250 Ala. at 401).
We find these cases inapt. The Opinion ofJustices was an advisory opinion that
speculated on the constitutionality of a proposed amendment before it was enacted. More
importantly, it was published prior to Ray, which overturned that court's decision, in part,
based on similar rationale to Opinion ofJustices. As to Breidenthal, appellants rely on
one sentence that was not dispositive. In Baca,the plaintiffs filed for a preliminary
injunction to prevent the secretary of state from removing them as presidential electors.
But the court denied their motion, holding they failed to show there was a likelihood the
plaintiffs would succeed on the merits. Appellants urge that Baca is instructive where the
court, in dictum, noted the State of Colorado would be unlikely to remove a presidential
elector after voting had begun both because the Colorado statute provided only for filling
vacancies prior to the start of voting and "'in light of the text of the Twelfth
Amendment.'" Br. of Appellants at 20(quoting Baca, 2016 U.S. App. LEXIS 23391, at
* 16 n.4). We find other language in the court's opinion far more relevant. Significant
here, the eourt pointed out that the electors had failed "to point to a single word in any
[constitutional provision] that support their position that the Constitution requires that
electors be allowed to exercise their discretion in choosing who to cast their votes for."
Order at 10.
19
No. 95347-3
Appellants also argue a fine impermissibly adds new requirements that do not
appear in the Constitution. They argue the only requirements to be nominated as an
elector are that they cannot be a senator, representative, or other person holding an office
of profit or trust; they must vote for at least one person who is not an inhabitant ofthe
same state with themselves; and the person must be eligible for the office of president.
See Br. of Appellants at 21-22. Appellants cite two cases that they argue support their
contention. In U.S. Term Limits, Inc. v. Thornton, the issue was a state's proposed
amendment that would prevent eligible candidates from appearing on the ballot if they
have served more than three terms as a representative or two terms as a senator. 514 U.S.
779, 783, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995)(term limits for federal officers).
The Court there rejected the proposed amendment, holding that the states lack power to
add qualifications. Id. at 805. In Powell v. McCormack,the Court held that Congress did
not have the authority to exclude members-elect after they were duly elected by the
people. 395 U.S. 486, 547-48, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). These cases
offer little support for appellants' position. U.S. Term Limits rests on explicit language in
article I, section 2 that is not present here, and Powell is a limit on congressional, not
state, authority. We acknowledge that some framers had intended the Electoral College
electors to exercise independentjudgment, but the Court in Ray reflects the historic
reality. As the Court noted,"The suggestion that in the early elections candidates for
electors . . . would have hesitated, because of constitutional limitations, to pledge
themselves to support party nominees in the event of their selection as electors is
impossible to accept." Ray, 343 U.S. at 228. While "[i]t is true that the Amendment says
20
No. 95347-3
the electors shall vote by ballot," "it is also true that the Amendment does not prohibit an
elector's armouncing his choice beforehand, pledging himself." Id. Even if read as
narrowly as appellants urge, Ray's holding rests on a rejection of appellants' position that
the Twelfth Amendment demands absolute freedom for presidential electors.^
We believe that Ray disposes ofthis question.^ The Twelfth Amendment does not
demand absolute freedom of choice for electors. In the same way that the Twelfth
^ We also note that appellants and amici argue elector discretion is required by the language of
the Constitution. They argue the phrase "by Ballot" means a "personal, secret ballot." Br. of
Appellants at 16; see also Br. for Amicus Curiae Independence Inst. at 3-5. While it is plausible
that the framers meant for the electors to cast their ballots "in secret," it is equally plausible the
framers used the word "ballot" to describe a device used to record the electors' votes. See
Black's Law Dictionary 171 (10th ed. 2014)("An instrument... used for casting a vote.")
Indeed, the names of every presidential elector is on a state's certificate of ascertainment
submitted to Congress. See 3 U.S.C. § 5. Moreover, we know how Washington State's
presidential electors individually voted for president and vice-president in the 2016 election. See
Natalie Brand, Washington State Electors Votefor Clinton, Powell, Faith Spotted Eagle, King5
News(Dec. 20, 2016,6:22 am), https://www.king5.com/article/news/politics/washington-state-
electors-vote-for-clinton-powell-faith-spotted-eagle/281-373558515; Liza Javier,
PresidentialBallots, King5 News, https://www.documentcloud.org/documents/3243191-
PresidentBallots.html; Liza Javier, VicePresidentBallots, King5 News,
https://www.documentcloud.org/documents/3243190-VicePresidentBallots.html.
A number of"faithless electors" have surfaced in prior elections. See, e.g., Subcomm. on
Constitutional Amendments of Comm. on the Judiciary, 87th CONG., The Electoral College,
Operation and Effect ofProposed Amendments to the Constitution ofthe United States 9(Comm.
Print 1961)(Henry D. Irwin of Oklahoma defected and voted for Senator Harry F. Byrd instead
of Richard Nixon); Note, State Power To Bind Presidential Electors, 65 COLUM. L. Rev. 696
(1965). We know of"faithless electors" also appearing in our nation's early elections. See Note,
supra, at 701 im.40-41 (In 1796, Federalist Elector Samuel Miles voted for the antifederalist
candidates, Jefferson and Pinckney. In 1820, New Hampshire elector William Plumer voted for
John Quincy Adams instead of James Monroe.). The fact that "faithless electors" have been
identified throughout our nation's history suggests "ballot" simply means "to record a vote,"
rather than to vote in secret.
^ Appellants say that Ray is not controlling here because the Court did not address enforceability
ofthe pledge requirement. They argue there is a distinction between moral authority and legal
enforceability. See Reply Br. of Appellants at 15-16. But Ray does make clear that the State may
impose obligations such as a pledge and thus rejects unfettered elector discretion.
21
No. 95347-3
Amendment does not prevent an elector from pledging himself, it does not prevent a state
from requiring its electors pledge to vote for its party candidate.
First Amendment
Finally, appellants argue that imposing a fine violates their First Amendment right
to vote. In support, appellants argue that voting is an expressive act and is protected from
any viewpoint-based restrictive state action. Br. of Appellants at 28. Appellants argue
their votes are a personal choice and the State must honor that choice. See id. at 29-30.
Appellants rely on Miller v. Town ofHull, 878 F.2d 523 (1st Cir. 1989). In that
case, a municipal governing board removed members of a public agency for failing to
vote in a way the members of the board preferred. Id. at 527. The court held removal was
unconstitutional because "the act of voting on public issues by a member of a public
agency or board comes within the freedom of speech guarantee ofthe first amendment.
This is especially true when the agency members are elected officials." Id. at 532. "The
entire course of conduct by the defendants supports the conclusion that the plaintiffs were
suspended because ofthe position they took as ... members with respect to the housing
project This was a violation of their first amendment rights." Id. at 533.
The State, on the other hand, relies on Nevada Commission on Ethics v. Carrigan,
arguing that the case supports the imposition of the fine here. 564 U.S. 117, 119, 131 S.
Ct. 2343, 180 L. Ed. 2d 150 (2011). There, the appellee was under investigation for
violating the State's recusal rules by voting to approve an application for a development
project that his longtime friend and campaign manager worked on. Id. at 120. The
commission had concluded that he had a conflict of interest, and the appellee appealed,
22
No. 95347-3
arguing the law was unconstitutional under the First Amendment. Id. at 120-21. The
Supreme Court reversed the Nevada Supreme Court's holding that the recusal rules
violate the First Amendment. In doing so, the Court held that "a legislator's vote is the
commitment of his apportioned share of the legislature's power to the passage or defeat
of a particular proposal. The legislative power thus committed is not personal to the
legislator but belongs to the people; the legislator has no personal right to it." Id. at 125-
26.
Nevada Commission is analogous here because electors act by authority of the
State. See Ray, 343 U.S. at 224-25. It is the "sole function ofthe presidential electors . . .
to cast, certify and transmit the vote ofthe State for President and Vice President ofthe
nation." In re Green, 134 U.S. at 379. In essence, the electors are carrying out a state
government duty. See Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d
689(2006)(speech made in the course of a government duty is not protected by the First
Amendment). Indeed, we note the federal district court recently engaged in a similar
I
analysis of an elector's First Amendment rights. See Chiafalo v. Inslee, 224 F. Supp. 3d
1140, 1145(W.D. Wash. 2016).^° There, the court rejected the plaintiffs First
Amendment argument on similar grounds, recognizing that the "[rjelevant legal authority
characterizes electors' role as 'ministerial' [and] limits the context in which the First
Amendment protects individuals performing their official, governmental duties." Id.
Some ofthe appellants filed for preliminary injunction in federal court prior to the State
assessing the fine complained of here. Judge James Robart denied their preliminary injunction,
rejecting nearly identical arguments the appellants make before us.
23
No. 95347-3
(citation omitted)(discussing Thomas v. Cohen, 146 Misc. 836, 262 N.Y.S. 320, 326
(Sup. Ct. 1933), and Garcetti, 547 U.S. at 421-22).
The power of electors to vote comes from the State, and the elector has no
personal right to that role. The "[appellants] chose to stand for nomination as an elector
for their party, subject to the rules and limitations that attend the position. They also
retain the ability to step down as electors without penalty." Id. (citations omitted). "[I]t
is unlikely that casting electoral ballots implicates [appellants'] First Amendment rights."
Id.
We hold the First Amendment is not implicated when an elector casts a vote on
behalf of the State in the Electoral College.
CONCLUSION
Article II, section 1 of the United States Constitution grants to the states plenary
power to direct the manner and mode of appointment of electors to the Electoral College.
We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority.
We further hold nothing under article II, section 1 or the Twelfth Amendment to the
Constitution grants to the electors absolute discretion in casting their votes and the fine
does not interfere with a federal function. Finally, an elector acts under the authority of
the State, and no First Amendment right is violated when a state imposes a fine based on
an elector's violation of his pledge. We affirm the trial court.
24
No. 95347-3
WE CONCUR:
-4
\^Dm lucv^l / Ci
25
In the Matter ofLevi Guerra, et al.
No. 95347-3
Gonzalez, J. (dissenting)—In 1976, Michael J. Padden, a Washington
elector, voted for Ronald Reagan even though the Republican Party nominated
Gerald Ford.' The following year, the legislature enacted a law requiring electors
to vote for the candidates nominated by their political party or face a civil penalty
of up to $1000. Laws of 1977, 1st Ex. Sess., ch. 238, §§ 1-2. In 2016, the electors
before us did not vote for the candidates nominated by their party. We must decide
if the State has the constitutional authority to impose a civil penalty on them. The
majority upholds imposition of the civil penalty. 1 respectfully dissent.
The State's authority to penalize its electors is an issue of first impression.
Ray V. Blair concerns only the broad authority to appoint electors. 343 U.S. 214,
Til, 72 S. Ct. 654, 96 L. Ed. 894(1952)("It is an exercise of the state's right to
appoint electors in such manner, subject to possible constitutional limitations, as it
'Official Ballot for the Position of President(Dec. 13, 1976)(on file with Wash. State Archives,
Electoral College and Federal Election Certifications, 1948-2012).
In the Matter ofLevi Guerra, et al. No. 95347-3 (Gonzalez, J., dissenting)
may choose."(citing U.S. Const, art. II, § 1)). The Court addressed the
constitutionality ofrequiring electors to make a pledge but did not address the
elector's discretion. Id. at 228. In dissent, Justice Robert H. Jackson raised
concerns about an elector's freedom to exercise independentjudgment as
originally intended. I share his concems. He opined,"No one faithful to our
history can deny that the plan originally contemplated, what is implicit in its text,
that electors would be free agents, to exercise an independent and nonpartisan
judgment as to the [individuals] best qualified for the Nation's highest offices." Id.
at 232(Jackson, J., dissenting)(citing The Federalist No. 68(Alexander
Hamilton)).
There is a meaningful difference between the power to appoint and the
power to control. "A power not expressly listed [in the Constitution] is granted
only if incidental to an enumerated power." Br. for Amicus Curiae Independence
Inst. at 8 (citing McCulloch v. Maryland, 17 U.S.(4 Wheat.) 316,405,4 L. Ed.
579(1819)). The Constitution provides the State only with the power to appoint,
leaving the electors with the discretion to vote their conscience. See U.S. Const.
art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do
not vote for the candidates nominated by their party. I respectfully dissent.
In the Matter ofLevi Guerra, et al, No. 95347-3 (Gonzalez, J., dissenting)