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!