Chiafalo v. Washington

• Decision Date: 06 July 2020
• Docket Number: No. 19-465,19-465
• Parties: Peter B. CHIAFALO, Levi Jennet Guerra, and Esther Virginia John, Petitioners v. WASHINGTON
• Court: U.S. Supreme Court

140 S.Ct. 2316

207 L.Ed.2d 761

Peter B. CHIAFALO, Levi Jennet Guerra, and Esther Virginia John, Petitioners

v.WASHINGTON

No. 19-465

Supreme Court of the United States.

Argued May 13, 2020

Decided July 6, 2020

L. Lawrence Lessig, Counsel of Record, Jason Harrow, Equal Citizens, Cambridge, MA, David H. Fry, J. Max Rosen, Munger, Tolles & Olson Llp, San Francisco, CA, for all Electors.

Sumeer Singla, Daniel A. Brown, Hunter M. Abell, Williams Kastner & Gibbs, Pllc, Seattle, WA, Jonah O. Harrison, Arete Law Group Pllc, Seattle, WA, for Petitioners in Chiafalo.

Jason B. Wesoky, Denver, CO, for Respondents in Baca.

Robert W. Ferguson, Attorney General, Noah G. Purcell, Solicitor General, Counsel of Record, Tera Heintz, Aland. Copsey, Deputy Solicitors General, Cristina Sepe, Assistant Attorney General, Olympia, WA, for Respondent.

Justice KAGAN delivered the opinion of the Court.

Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few "electors" then choose the President.

The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State's popular vote. Most States also compel electors to pledge in advance to support the nominee of that party. This Court upheld such a pledge requirement decades ago, rejecting the argument that the Constitution "demands absolute freedom for the elector to vote his own choice." Ray v. Blair , 343 U.S. 214, 228, 72 S.Ct. 654, 96 L.Ed. 894 (1952).

Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State's popular vote. We hold that a State may do so.

I

Our Constitution's method of picking Presidents emerged from an eleventh-hour compromise. The issue, one delegate to the Convention remarked, was "the most difficult of all [that] we have had to decide." 2 Records of the Federal Convention of 1787, p. 501 (M. Farrand rev. 1966) (Farrand). Despite long debate and many votes, the delegates could not reach an agreement. See generally N. Peirce & L. Longley, The People's President 19–22 (rev. 1981). In the dying days of summer, they referred the matter to the so-called Committee of Eleven to devise a solution. The Committee returned with a proposal for the Electoral College. Just two days later, the delegates accepted the recommendation with but a few tweaks. James Madison later wrote to a friend that the "difficulty of finding an unexceptionable [selection] process" was "deeply felt by the Convention." Letter to G. Hay (Aug. 23, 1823), in 3 Farrand 458. Because "the final arrangement of it took place in the latter stage of the Session," Madison continued, "it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies: tho’ the degree was much less than usually prevails in them." Ibid. Whether less or not, the delegates soon finished their work and departed for home.

The provision they approved about presidential electors is fairly slim. Article II, § 1, cl. 2 says:

"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 next clause (but don't get attached: it will soon be superseded) set out the procedures the electors were to follow in casting their votes. In brief, each member of the College would cast votes for two candidates in the presidential field. The candidate with the greatest number of votes, assuming he had a majority, would become President. The runner-up would become Vice President. If no one had a majority, the House of Representatives would take over and decide the winner.

That plan failed to anticipate the rise of political parties, and soon proved unworkable. The Nation's first contested presidential election occurred in 1796, after George Washington's retirement. John Adams came in first among the candidates, and Thomas Jefferson second. That meant the leaders of the era's two warring political parties—the Federalists and the Republicans—became President and Vice President respectively. (One might think of this as fodder for a new season of Veep.) Four years later, a different problem arose. Jefferson and Aaron Burr ran that year as a Republican Party ticket, with the former meant to be President and the latter meant to be Vice. For that plan to succeed, Jefferson had to come in first and Burr just behind him. Instead, Jefferson came in first and Burr ... did too. Every elector who voted for Jefferson also voted for Burr, producing a tie. That threw the election into the House of Representatives, which took no fewer than 36 ballots to elect Jefferson. (Alexander Hamilton secured his place on the Broadway stage—but possibly in the cemetery too—by lobbying Federalists in the House to tip the election to Jefferson, whom he loathed but viewed as less of an existential threat to the Republic.) By then, everyone had had enough of the Electoral College's original voting rules.

The result was the Twelfth Amendment, whose main part provided that electors would vote separately for President and Vice President. The Amendment, ratified in 1804, says:

"The Electors shall meet in their respective states and vote by ballot for President and Vice-President ...; 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 [Congress, where] the votes shall then be counted."

The Amendment thus brought the Electoral College's voting procedures into line with the Nation's new party system.

Within a few decades, the party system also became the means of translating popular preferences within each State into Electoral College ballots. In the Nation's earliest elections, state legislatures mostly picked the electors, with the majority party sending a delegation of its choice to the Electoral College. By 1832, though, all States but one had introduced popular presidential elections. See Peirce & Longley, The People's President, at 45. At first, citizens voted for a slate of electors put forward by a political party, expecting that the winning slate would vote for its party's presidential (and vice presidential) nominee in the Electoral College. By the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors. See Albright, The Presidential Short Ballot, 34 Am. Pol. Sci. Rev. 955, 955–957 (1940). After the popular vote was counted, States appointed the electors chosen by the party whose presidential nominee had won statewide, again expecting that they would vote for that candidate in the Electoral College.¹

In the 20th century, many States enacted statutes meant to guarantee that outcome—that is, to prohibit so-called faithless voting. Rather than just assume that party-picked electors would vote for their party's winning nominee, those States insist that they do so. As of now, 32 States and the District of Columbia have such statutes on their books. They are typically called pledge laws because most demand that electors take a formal oath or pledge to cast their ballot for their party's presidential (and vice presidential) candidate. Others merely impose that duty by law. Either way, the statutes work to ensure that the electors vote for the candidate who got the most statewide votes in the presidential election.

Most relevant here, States began about 60 years ago to back up their pledge laws with some kind of sanction. By now, 15 States have such a system.² Almost all of them immediately remove a faithless elector from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge.

Washington is one of the 15 States with a sanctions-backed pledge law designed to keep the State's electors in line with its voting citizens. As all States now do, Washington requires political parties fielding presidential candidates to nominate a slate of electors. See Wash. Rev. Code § 29A.56.320(1). On Election Day, the State gives voters a ballot listing only the candidates themselves. See § 29A.56.320(2). When the vote comes in, Washington moves toward appointing the electors chosen by the party whose candidate won the statewide count. See ibid. But before the appointment can go into effect, each elector must "execute [a] pledge" agreeing to "mark [her] ballots" for the presidential (and vice presidential) candidate of the party nominating her. § 29A.56.084. And the elector must comply with that pledge, or else face a sanction. At the time relevant here, the punishment was a civil fine of up to $1,000. See § 29A.56.340 (2016).³

This case involves three Washington electors who violated their pledges in the 2016 presidential election. That year, Washington's voters chose Hillary Clinton over Donald Trump for President. The State thus appointed as its electors the nominees of the Washington State Democratic Party. Among those Democratic electors were petitioners Peter Chiafalo, Levi Guerra, and Esther John (the Electors). All three pledged to support Hillary Clinton in the Electoral College. But as that vote approached, they decided to cast...