Two Washington electors have filed a federal lawsuit challenging a law that would fine them up to $1,000 each if they disregard the state popular vote in the November presidential election.
Democratic electors Bret Chiafalo and Levi Guerra argue such penalties are unconstitutional, and that they should be able to cast their votes as they see fit when the Electoral College meets Dec. 19.
A hearing on their request for an injunction barring the state from enforcing the law is scheduled for Wednesday in U.S. District Court in Seattle.
While that request is legally narrow, it is part of a longshot effort by some electors across the country to deny President-elect Donald Trump the White House — a movement gaining more attention after reports that the CIA has concluded Russia interfered in the election to aid Trump.
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The lawsuit has caught the attention of Trump’s campaign. Attorneys for the president-elect filed a motion Monday seeking to intervene in the case, arguing the lawsuit “threatens to undermine the many laws in other states that sensibly bind their electors’ votes to represent the will of the citizens, undermining the Electoral College.”
Chiafalo and Guerra, two of Washington’s 12 Democratic electors, signed pledges this year committing to cast their electoral votes for Hillary Clinton, who easily won Washington in the Nov. 8 election.
But they’re willing to break those pledges as part of a national movement of so-called “Hamilton Electors,” who are seeking to deny Trump the 270 Electoral College votes needed to make him president.
As Democratic electors, Chiafalo and Guerra were already assumed to be in Clinton’s column — so they can’t do anything to reduce Trump’s Electoral College count. But they’re trying to persuade Republican electors in other states to split from Trump and unite with them behind an as-yet-unnamed alternative GOP candidate.
“This is an emergency situation,” Chiafalo, of Everett, said Monday. He and Guerra, who lives in Grant County, have said they’d defy state law and support such a compromise Republican candidate when the Electoral College meets Dec. 19 for what normally is a symbolic vote.
If 37 Republican electors were to withhold their votes from Trump, the president-elect would be denied an Electoral College majority, sending the decision to the U.S. House of Representatives. The GOP-dominated House would be required to pick from among the top three electoral vote-getters, meaning Trump could still be made president.
In a seven-page complaint filed last week, attorneys for Chiafalo and Guerra argued Washington’s law penalizing electors for voting their consciences violates the constitution and renders the Electoral College meaningless.
Their complaint quotes Alexander Hamilton, one of the nation’s Founding Fathers, who wrote the Electoral College ought to serve as a stopgap against unqualified or corrupt candidates and would prevent “foreign powers” from gaining “an improper ascendant in our councils.”
In a response filed late Monday, state Attorney General Bob Ferguson, a Democrat, defended the state’s law and argued Chiafalo and Guerra’s request for an injunction is weak on its legal merits.
Washington’s law merely imposes a “modest civil penalty” for electors who violate their pledges, and doesn’t call for invalidating their votes, Ferguson’s office noted in a legal filing.
“No court has ever deemed such a requirement unconstitutional, and Plaintiffs’ unprecedented claims have no likelihood of success on the merits,” Ferguson’s legal brief said. “It does not violate the Constitution for the State to attempt to hold electors to their own voluntary pledges to follow the will of the voters.”
Chiafalo, originally a Bernie Sanders supporter, said before the election he might not cast an electoral vote for Clinton, whom he expected to win.
Similar lawsuits have been filed by electors in Colorado and by a Democratic lawmaker in California.
In Colorado, Republican Secretary of State Wayne Williams blasted the lawsuit by two electors there as an “arrogant” effort to nullify the popular vote in that state, according to The Denver Post.
In the Nov. 8 election, Trump won enough states to receive 306 Electoral College votes, compared with 232 for Clinton, despite her lead of more than 2.6 million in the national popular vote.
The lawsuit named Secretary of State Kim Wyman, a Republican, and Gov. Jay Inslee, a Democrat, as defendants. Spokespersons for both offices declined to comment Monday on the merits of the case.
Dave Ammons, a spokesman for Wyman, said her office was working to figure out how to administer the $1,000 penalty for so-called “faithless electors” — which has never actually been assessed here.
The state law creating the penalty was enacted after a Republican elector, Mike Padden, in 1976 declined to cast his vote for Gerald Ford, who’d won the state. Padden, now a state senator, backed Ronald Reagan instead.