Three presidential electors in Washington state who voted for Colin Powell in 2016 rather than Hillary Clinton and were fined under state law, are asking the US Supreme Court to take up their appeal and decide whether a state can bind an elector to vote for the state's popular vote winner.
"The original text of the Constitution," their lawyers argued in court papers filed Monday afternoon, "secures to electors the freedom to vote as they choose."
If the Supreme Court agrees to hear the appeal of the so-called "faithless electors," it could thrust the justices into yet another high-passion political fight in the heat of the 2020 presidential election. It comes as some predict that the volatile political atmosphere and disputes over redistricting could further emphasize the role of the Electoral College in the upcoming election.
"The issue is undeniably important: presidential elections in the Electoral College will be increasingly close, and could literally turn upon whether electors have a constitutionally protected discretion," Lawrence Lessig, a lawyer for the so-called "faithless electors," told the justices in court papers.
Overall, 10 of the 538 presidential electors in 2016 voted or attempted to vote for someone other than their pledged candidate, Lessig noted.
In May, the Washington state Supreme Court held that the state could regulate the vote of an elector either directly or indirectly.
But in August, a federal appeals court ruled that a similar Colorado law was unconstitutional.
"There is nothing in the federal Constitution" that allows a state to remove an elector or nullify his vote, a three judge panel of the 10th US Circuit Court of Appeals held. "The states may not interfere with the electors' exercise of discretion in voting for the President and Vice President."
Most states currently require some kind of a pledge from an elector to vote for the party's candidate.
The Washington state challenge is brought by Peter Bret Chiafalo, Levi Jennet Guerra and Esther Virginia John, who were nominated as presidential electors for the Washington Democratic Party for the 2016 election. Hillary Clinton and Tim Kaine received the most popular votes in the state for president and vice president, respectively.
The three electors voted for Colin Powell for president. For vice president, Guerra voted for Washington Democratic Sen. Maria Cantwell, John voted for Maine Republican Sen. Susan Collins and Chiafalo voted for Massachusetts Democratic Sen. Elizabeth Warren.
The state law requires each political party with presidential candidates to nominate electors from its party equal to the number of senators and representatives in the states. Those who are nominated are required to pledge to vote for the candidate of their party.
If the elector does not vote for their party candidate they are subject to a civil penalty of up to $1,000.
The three electors were each fined for failing to vote for the nominee of their party. They appealed their case eventually to the Washington state Supreme Court, which ruled against them, holding that they "act by authority of the State."
"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," the court held.
In court briefs, Lessig urges the justices to "resolve this conflict now, before it arises within the context of a contested election" arguing that if the court decides the issue before the next election it could issue an opinion "outside the white-hot scrutiny of a contested presidential election."
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