NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Tuesday, April 30th, 2019

Faithless presidential electors in Washington? Not in 2020, and never again with new rules

On December 19th, 2016, a quartet of individuals entrusted with the responsibility of casting four of Washington’s twelve Electoral College votes wrongfully disregarded the pledges they had signed pledging to vote for the presidential ticket supported by a majority of the state’s voters, denying Hillary Clinton and Tim Kaine a third of the electoral votes they had earned under Washington State law.

Three of the faithless electors — Peter Bret Chiafalo, Esther John, and Levi Guerra — collectively cast votes for former Secretary of State and retired General Colin Powell, while a fourth faithless elector — Robert Satiacum — voted for Faith Spotted Eagle, a tribal leader belonging to the Yankton Sioux Nation.

(The State of Washington subsequently fined Chiafalo, John, Guerra and Satiacum $1,000 each for failing to discharge their responsibilities as electors to support the presidential and vice presidential ticket chosen by the people of the State of Washington. The quartet subsequently asked Thurston County Superior Court Judge Carol Murphy to dismiss the penalties, but she declined.)

Only a few days prior, I had given a presentation about getting involved in politics at Bellevue College, where two bright and thoughtful students had asked me if anything could be done to ensure that Hillary Clinton and Tim Kaine received all twelve of Washington’s Electoral College votes that they had earned.

These students had heard that some of Washington’s presidential electors were planning on violating their pledges, which they found very disheartening.

I explained that Washington has a faithless elector statute to penalize electors who don’t carry out their responsibilities, but that the decades-old statute wouldn’t prevent Chiafalo, John, Guerra and Satiacum from voting for someone other than Hillary Clinton. I urged them to write to the electors who had announced their intention not to be faithful and ask them to reconsider.

And I assured them that I would do what I could to ensure that at future meetings of the Electoral College, Washington would be represented by faithful electors.

Since then, I have worked with my colleagues on the Washington State Democratic Central Committee (WSDCC) and State Senator Patty Kuderer (D-48th District: Redmond, Kirkland, Bellevue) to change both party rules and state law concerning the appointment and responsibilities of presidential electors — and to put procedures in place to fire electors who disregard their responsibilities.

This month, those efforts were brought to a successful conclusion.

On Sunday, April 7th, the Washington State Democratic Central Committee voted to submit to the Democratic National Committee a Delegate Selection and Affirmative Action Plan (DSAAP) which proposes a replacement procedure for selecting presidential electors along with a new procedure for replacing electors who the Democratic Party determines can’t be trusted to be faithful.

Previously, electors (primary electors and their alternates) were chosen during the spring presidential caucus and convention cycle by delegates to congressional district caucuses and the state convention.

For 2020, the WSDCC has proposed selecting the party’s slate of electors itself at its autumn meeting, which will take place after nominees for President and Vice President have been chosen. If the DNC signs off on this plan, the WSDCC will assume responsibility for choosing the elector slate.

The WSDCC — a representative body tasked with governance of the state party — is already responsible for selecting the party’s officers and Democratic National Committee Members plus the state’s at-large Democratic National Convention delegates, so it makes sense that it should also choose the electors.

The WSDCC’s Executive Committee will also have the power to remove electors from its slate, as explained in Section VI, subsection B of the draft DSAAP:

  1. The Executive Committee of the State Democratic Party may remove an Elector (or alternate Elector) through a majority vote prior to the certification of the election of Electors by the Washington Secretary of State if grounds exist to believe that the Elector (or alternate Elector) will violate their pledge to elect Presidential and Vice Presidential nominees, under the label and designation of the Democratic Party of the United States. The exact date will depend on state law or policies, if any, promulgated by the Washington Secretary of State.
  2. If an Elector (or alternate Elector) is removed, the Chair of the State Democratic Party shall inform the Washington State Secretary of State that the individual no longer represents the will of the voters for the Presidential nominee of the Democratic Party of the United States and that the alternate elector will serve as the Elector.
  3. If an Elector (or alternate Elector) is removed, the Executive Committee shall select an alternate elector from among the members of the SCC.
  4. The Executive Committee of the State Democratic Party may remove an Elector (or alternate Elector) through a majority vote after the certification of the election of Electors by the Washington Secretary of State if grounds exist, including, but not limited to the failure of the certified elector’s refusal to sign an oath stating that they will be voting for the Democratic President and Vice-Presidential Nominees, or belief that the Elector (or alternate Elector) will violate their pledge to elect Presidential and Vice Presidential nominees, under the label and designation of the Democratic Party of the United States. The exact date will depend on state law or policies, if any, promulgated by the Washington Secretary of State.

If the DNC blesses these procedures, the Washington State Democratic Party will possess the authority to fire faithless would-be electors before they can embarrass the party at the next meeting of the Electoral College in December of 2020.

Meanwhile, the State of Washington is also gaining the ability to fire and replace electors who don’t discharge their duties.

Last Friday, April 26th, Governor Jay Inslee signed into law Senate Bill 5074 — the uniform faithful presidential electors act, a bill requested by the Uniform Law Commission. This bill, which I testified in support of in February, gets rid of the old faithless elector statute, abolishing the ineffective $1,000 penalty and instead creating a procedure that guarantees that electors will be faithful.

This new Uniform Faithful Presidential Electors Act instructs the Secretary of State to examine each elector’s vote for President and Vice President of the United States, and reject any vote which is not in accordance with the people’s will.

“An elector who refuses to present a ballot, presents an unmarked ballot, or presents a ballot marked in violation of the elector’s pledge executed under section 4 or 6(3) of this act vacates the office of elector,” the Act declares.

If an elector is dismissed, they are succeeded by their alternate.

If their alternate is not present, or does not honor the will of the people of the State of Washington, SB 5074 stipulates that another alternate from the group of alternate electors shall be chosen by lot to fill the vacancy and take over.

SB 5074 passed the Washington State House of Representatives on April 12th on a vote of fifty-two to forty-five. Democrats Brian Blake and Sharon Tomiko Santos voted no, while Democrats Sherry Appleton, Drew Hansen, and Jeff Morris missed the vote. In the Senate, where the bill originated, it earned the support of twenty-seven Democrats plus two Republicans (Tim Sheldon and Brad Hawkins). Democratic Senator Bob Hasegawa voted no.

Two Republicans spoke against the bill in the House: extremists Jim Walsh and Matt Shea. Neither offered a rationale for opposing the legislation that made any sense at all. (Shea amusingly tried — and failed — to offer a constitutional history lesson regarding the Founders’ intent in establishing the Electoral College.)

In the Senate, Republicans Hans Zeiger and Mike Padden spoke against the bill, saying they thought the replacement of potentially faithless electors was a matter for the political parties to resolve, with Padden (himself a faithless elector who refused to vote for Gerald Ford) dryly noting that the Democratic Party has carried Washington in all recent presidential elections.

It will no doubt interest Senators Zeiger and Padden to know that the Washington State Democratic Party has taken action to ensure that its next slate of electors are faithful. I regard Senate Bill 5074 as an important and necessary insurance policy that will provide a legal safeguard in the event the Democratic Party’s safeguards do not work. (If history is any indication, Washington will be voting for the Democratic ticket in 2020; it has done so consistently since 1988.)

I believe these changes to party rules and state law will ensure that Washington’s 2020 presidential electors will honor the will of the people and cast their votes appropriately. I thank everyone who has reached out to me since November of 2016 to express their desire for the need for these reforms. I’m delighted to report that there has been follow-through on not one, but two fronts.

Washington State is ready for the 2020 meeting of the Electoral College!

Adjacent posts

3 Comments

  1. Justice Robert H. Jackson (dissenting), “Ray v. Blair” (1952):

    No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices […]

    Certainly under that plan no state law could control the elector in performance of his federal duty, any more than it could a United States Senator who also is chosen by, and represents, the State.

    This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

    They always voted at their Party’s call And never thought of thinking for themselves at all…

    It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as ‘due process of law,’ ‘equal protection,’ or ‘commerce among the states.’ But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.

    […]

    Who will come to possess this weapon and to whose advantage it will prove in the long run I am not foresighted enough to predict. But party control entrenched by disfranchisement and exclusion of nonconforming party members is a means which to my mind can not be justified by any end. In the interest of free government, we should foster the power and the will to be independent even on the part of those we may think to be independently wrong.

    […]

    It is not for me, as a judge, to pass upon the wisdom or righteousness of the political revolt this measure was designed to suppress. For me it is enough that, be it ever so benevolent and virtuous, the end cannot justify these means.

    Source: Library of Congress’ copy of the full opinion in Ray v. Blair (1952).

    This comment has been modified by NPI to provide a citation.

    # by Prof. William Greene :: May 1st, 2019 at 2:11 PM
  2. Water, it’s all about the water 🙂

    # by Robert Satiacum :: May 13th, 2019 at 5:43 PM
    • Your decision to violate the pledge you signed to vote for the person who won Washington’s popular vote did not advance the cause of clean water, Robert.

      All you did was prove yourself to be untrustworthy. You didn’t keep your word and discharge your duty to the people of the State of Washington and the Democratic delegates who chose you to be an elector.

      As I recall, you did not nominate yourself to be an at large elector at the state convention in Tacoma. Someone else nominated you and you won. Nevertheless, if you did not want the position, or were unwilling to vote for the Democratic nominee, you should have resigned and said: “I can’t vote for Hillary Clinton and here’s why, so I’m resigning as an elector.” You could have made whatever point you wanted to make without violating the trust people had placed in you.

      Fortunately, there will not be any more electors like you in the future thanks to these changes to party rules and state law.

      # by Andrew Villeneuve :: May 15th, 2019 at 11:17 AM