Sunday, November 10, 2019

Is the "Faithless Elector" Coming to the Supreme Court?

"A recently-filed cert petition gives the Court a good opportunity to rule on the constitutional role of presidential electors"

The Volokh Conspiracy  "A cert petition (available here) has been filed with the Supreme Court in the latest case involving "faithless electors," Chiafalo et al. v. State of Washington. [Historian Michael Rosin and I have submitted an amicus brief, available here, in support of the petition.] I'm betting that the Court will grant the petition and finally give us its views on a fascinating, and very thorny, question of constitutional law: to what extent may States control the behavior of presidential electors in the performance of their electoral duties?
"The Chiafelo case involves three of Washington State's presidential electors in the 2016 election.  Each had been included in a "slate" of potential electors submitted by the WA Democratic Party to the WA Secretary of State. When Hillary Clinton won the Washington popular vote, the WA Secretary of State, in accordance with WA law, appointed the members of the Democratic slate to be the State's presidential electors.
"WA law requires the electors to vote in accordance with their direction from the Party which nominated them, and backs that up with punishment if they act otherwise:
"Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars."  RCW 29A-56-340.
"But when the State's electors convened in Olympia in December, 2016, the three petitioners in this case, instead of voting for Hillary Clinton, cast their ballots for Colin Powell. They were subsequently fined $1000 each for having [done] so." . . .

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