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!

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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