Supreme Court Decides Chiafalo v. Washington

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

On July 6, 2020, the U.S. Supreme Court decided Chiafalo v. Washington, No. 19-465, holding that states may penalize “faithless electors" who break their pledge to vote for their party’s presidential nominee.

For every presidential election, each state appoints members of the Electoral College based on the popular vote within the state, with almost all of the states appointing electors chosen by the party whose presidential nominee won the popular vote in the state, which leads to all electors from the state voting for the same candidate in the Electoral College.

Many states have enacted statutes that require the party-chosen electors to vote for their party’s winning nominee, and some of those states back that requirement up with a sanction if an elector does not vote for the candidate he or she promised to vote for (such electors are often referred to as “faithless electors”).

Washington is one of the states that penalizes electors who fail to vote for their party’s presidential nominee. After the 2016 presidential election, three Washington electors did exactly that — voting for Colin Powell instead of Hillary Clinton, as they had pledged to do. Washington fined each elector $1,000. The electors challenged their fines as a violation of either Article II or the 12th Amendment of the Constitution, but the Washington Supreme Court held that the fines did not violate either provision.

The Supreme Court affirmed. The Court had previously held that states could require electors to vote for their party’s presidential nominee, so the only question was whether states could sanction electors who refused to do so. The Court started by emphasizing that the appointments power in Article II, § 1 of the Constitution gives states broad authority over presidential electors, as it allows states to appoint electors “in such Manner as the Legislature thereof may direct.” Nothing in that provision or in the 12th Amendment prohibits states from taking away electors’ discretion to vote for whomever they wish. The Court went on to observe that pledged electors are nothing new. “From the first, States sent [electors] to the Electoral College … to vote for preselected candidates, rather than to use their own judgment.” And there have been relatively few “faithless electors” over the years, showing a long historical understanding that electors are required to vote for a preselected candidate.

Justice Kagan wrote the opinion of the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, Gorsuch, and Kavanaugh. Justice Thomas filed an opinion concurring in the judgment, joined by Justice Gorsuch as to Part II.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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