Chiafalo v. Washington

In the 2016 presidential election, the major-party nominees were Hillary Clinton and her running mate Tim Kaine for the Democrats, and Donald Trump and his running mate Mike Pence for the Republicans. Trump eventually won the election with 304 electoral votes to become the 45th President of the United States. There was a grassroots effort to convince electors to "vote their conscience for the good of America" in accordance with Alexander Hamilton's Federalist Paper No. 68 to try to sway electors to vote for an alternative Republican candidate, even if this were to violate their pledges, to deny Trump a majority in the electoral college and trigger a contingent election in the United States House of Representatives.[4][5] There had been an attempt by these "Hamilton electors" to trade faithless votes between electors of different parties to make a more effective impact on the electoral college, but this failed to come together, leaving most of the faithless votes coming from Democratic electors.[6]

Four Washington electors for the Democratic party who had signed pledges to vote for the Democratic nominee voted for candidates other than Clinton/Kaine. Per the law, they were each fined.[7] Three of the four electors, Peter Bret Chiafalo, Levi Guerra, and Esther John, challenged the fine as a violation of their constitutional rights, arguing that the state's authority over them as electors ended once they were appointed and they were free to vote as they choose under the Twelfth Amendment to the United States Constitution. At an initial hearing, an administrative law judge upheld the fines, stating he had no jurisdiction to rule on constitutional arguments, only whether the fines were applied in accordance with state law. At the first trial at the Thurston County Superior Court in 2017, the judge ruled against the constitutional argument and deemed the fines permissible.[8] The three electors then appealed to the Washington Supreme Court, which in May 2019 upheld the lower court ruling with an 8-1 vote. The majority opinion stated that "The power of electors to vote comes from the State, and the elector has no personal right to that vote" to justify the fine.[3][9] The lone dissent argues that the plenary power of the state to appoint electors may not be conflated with control over the electors once voting has begun, in line with Justice Jackson's concerns in Ray v. Blair.[10]

Subsequently, Washington Governor Jay Inslee signed a bill into law in May 2019 that changes the faithless elector law, such that should an elector fail to vote for the candidate of their party, the elector is removed from their position and a new elector is then appointed, rather than allowing the elector to vote faithlessly and be subject to fines after the fact.[9] The new law is analogous to the law in question in the Colorado case.

On October 7, 2019, the three electors appealed their case to the United States Supreme Court.[11][12]

On January 17, 2020, the Supreme Court agreed to hear both the Washington case as well as a similar case out of Colorado, Colorado Department of State v. Baca, as a consolidated case under the Chiafalo v. Washington name.[13] Oral arguments were scheduled for April 28, 2020.[14] However, on March 10, Justice Sonia Sotomayor announced that she would recuse herself from the Colorado case, citing her prior friendship with the respondent Polly Baca. As a separate result, the Supreme Court reversed the consolidation of the two cases in a decision that Sotomayor had no part in due to her connection to Baca.[15] Oral arguments in both cases were heard on May 13, 2020, which were held via teleconference due to the COVID-19 pandemic.[16] Observers to the arguments for both cases believed the justices were concerned with the chaos that allowing faithless electors to vote how they wanted, or to be influenced by bribes, would have on the election process. Lawrence Lessig, representing several of the faithless electors, argued that the Constitution does not give the authority to states to restrict how electors can vote, but several justices stated that the Constitution does not block states from such restrictions.[17]

The Supreme Court's decision is highly anticipated with respect to the upcoming 2020 United States presidential election. Though faithless electors have never changed the outcome of an election, some argue the possibility that faithless votes could affect the outcome in a close election increased in light of the events of 2016.[18]

The electors in both cases are represented by Lawrence Lessig, who founded the group Equal Citizens that is pursuing litigation to seek democratic election reforms and raise awareness. Lessig argued that both cases offered the Supreme Court the opportunity to rule on the matter of faithless elector laws outside the realm of a contested election where their ruling would have a direct impact on the outcome, as in Bush v. Gore. By clarifying how the Electoral College actually functions, Lessig and Equal Citizens hope to spur Electoral College reform via either a constitutional amendment or the National Popular Vote Interstate Compact.[19] In the latter case, electors from states in the compact combined with electors pledged to the popular vote winner in non-compact states would conceivably create a buffer in electoral votes such that it would take an unprecedented number of faithless electors to threaten the electoral college majority of the popular vote winner.