A record number of Electoral College electors voted contrary to their pre-election pledge in 2016. Most of these electors cast their ballots based on the good faith belief that the Constitution entitled them to depart from their pledge, but ended up facing fines or threats of criminal prosecution from their state governments. This calls into question the constitutional power of electors, and it is critically important that the Supreme Court resolve this question before the action of any elector creates a constitutional crisis.
We are currently providing legal help to the electors in Colorado and Washington who were threatened or fined by their state government for voting their conscience in 2016. We believe that these states’ actions violated the electors’ rights, because the Constitution secures to electors the freedom to vote their conscience. Our argument will draw on the understanding of the framers about the role of the Electoral College, as well as relatively recent Supreme Court authority that affirms electors’ freedom.
Whether or not the Court ultimately rules that electors are free to vote their conscience, we are hopeful that these cases will be the vehicle for resolving this crucial issue before the next election.
Nemanich v. Colorado Department of State (2017)
We have filed a lawsuit on behalf of three electors in Colorado who sought to defend their constitutional freedom to vote their conscience in the last presidential election as federal electors. Michael Baca, Polly Baca, and Robert Nemanich believed the special circumstances of the last election required that they vote their conscience, contrary to a pre-election pledge. Secretary of State Wayne Williams threatened them with removal, if they indeed did vote against their pledge, as well as criminal prosecution.
Guerra v. Washington State Office of Administrative Hearings (2017)
Washington State fined three electors, Peter Bret Chiafalo, Levi Jennet Guerra, and Esther Virginia John, who voted their conscience, contrary to a pre-election pledge. This case raises the question whether the state of Washington has the constitutional power to compel its electors to vote for a particular presidential and vice-presidential candidate, i.e. whether states may penalize an elector who votes contrary to her pledge, by imposing a civil fine or other penalty. We are supporting the legal defense of these electors to resolve the constitutional question.
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