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# DATS f^AY 2 synj^ I DA7^Jjni_z_^ Susan L.Carlson Supreme Court Clerk



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of LEV!GUERRA,ESTHER V.JOHN,and PETER B. CHIAFALO,

Appellants. No. 95347-3

En Banc Filed MAY 2 31019 J 

### MADSEN,J.—Appellants Levi Guerra,Esther John,and Peter Chiafalo moved for 

### direct appeal ofa Thurston County Superior Court decision upholding the imposition ofa $1,000 fine for failing to cast their votes in the United States Electoral College in accordance with the popular vote in the State ofWashington. They argue the fine is a violation ofarticle II, section I ofthe United States Constitution,the Twelfth Amendment,and the First Amendment. For the reasons below, we reject appellants' argument and affirm the trial court.No. 95347-3

FACTS Background Facts 

## Under Washington State election law ROW 29A.56.320,each political party with 

## presidential candidates is required to nominate eleetors from its party equal to the number ofsenators and representatives allotted to the state. People nominated are required to 

## pledge to vote for the candidate oftheir party. Should nominees ehoose notto vote for their party eandidate,they may be subject to a civil penalty ofup to $1,000. See ROW 29A.56.340. The people ofthe state do not vote for presidential eleetors. Rather,they vote for presidential candidates. The nominees ofthe party that wins the popular vote are 

## appointed by the legislature to be Washington State's presidential electors. Along with all but two other states, Washington has a "winner-take-all" electoral system.

' ROW 29A.56.320 covers how electors are nominated. It reads: 

### In the year in which a presidential election is held,each major political party and each minor political party or independent candidate convention that nominates candidates for president and vice president ofthe United States shall nominate 

### presidential electors for this state. The party or convention shall file with the secretary ofstate a certificate signed by the presiding officer ofthe convention at which the presidential electors were chosen,listing the names and addresses of 

### the presidential electors. Each presidential elector shall execute and file with the secretary ofstate a pledge that,as an elector,he or she will vote for the candidates nominated by that party. The names ofpresidential electors shall not appear on the ballots. The votes cast for candidates for president and vice president ofeach 

### political party shall be counted for the candidates for presidential electors ofthat political party;however,ifthe interstate compact entitled the "agreement among the states to elect the president by national popular vote," as set forth in RCW 

### 29A.56.300,governs the appointment ofthe presidential electors for a presidential election as provided in clause 9 ofArticle III ofthat compact,then the final 

### appointment ofpresidential electors for that presidential election shall be in accordance with that compact. 

### ^ Appellants do not challenge the requirement that electors pledge to vote for the candidates who win the popular vote.No. 95347-3



## Appellants were nominated as presidential electors for the Washington State Democratic Party ahead ofthe 2016 presidential election. Hillary Clinton and Tim Kaine won the popular vote in Washington State,meaning appellants and their fellow DemocraticParty nominees were appointed by the legislature to serve as electors for the State of Washington. 

### Based on the results from the nationwide election, it was expected that Donald 

### Trump would become the nextpresident. Nationwide,some electors, including 

## appellants,announced they would not vote for either Clinton or Trump and would instead attempt to prevent Trump from receiving the minimum number ofElectoral College votes 

### required to become president.^ Under the Constitution,ifno candidate receives a majority ofthe Electoral College votes,the House ofRepresentatives is to determine who will be the next president. 

### On December 19,2016,appellants, along with the other presidential electors, met 

### in Olympia to cast their ballots. Appellants did not vote for Hillary Clinton and Tim Kaine,as required by their pledge,but instead voted for Colin Powell for president and a different individual for vice-president. These votes were counted and transmitted to 

### Congress for the official tally ofthe electoral votes. On December 29,2016,the

^ During the 2016 election, seven presidential electors across the country voted for someone other than their pledged candidate. Four ofthese "faithless electors" were a part ofWashington State's contingency to the Electoral College. See Kiersten Sehmidt & Wilson Andrews,A Historic Number ofElectors Defected, and Most Were Supposed to Votefor Clinton,N.Y.Times (Dec. 19, 2016),https://www.nytimes.eom/interactive/2016/12/19/us/elections/electoral-collegeresults.html.No. 95347-3



### Washington secretary ofstate fined appellants $1,000 eaeh,under RCW 29A.56.340,for failing to vote for the nominee oftheir party. Procedural Facts 

### Appellants appealed their fines to an administrative law judge (ALJ),arguing the fines were unconstitutional. Having no authority to rule on constitutional matters,the 

### ALJ upheld the imposition ofthe fine, and appellants appealed to the Thurston County Superior Court. 

### The appeal was heard before Judge Carol Murphy ofthe Thurston County Superior Court. In affirming the secretary ofstate,the trial court noted the fine was 

### constitutionally permissible beeause "[t]he State is not adding a qualifieation, nor is the 

### State here requiring specifie performance ofthe pledge." Verbatim Report ofProceedings at 49. Appellants timely filed a notice ofappeal and filed a motion for direct review in
this court.

RCW 29A.56.340 outlines the procedure for casting electoral votes and the penalty for failing to vote for the nominee ofthe elector's party. It reads: The electors ofthe president and vice president shall convene at the seat of government on the day fixed by federal statute, at the hour oftwelve o'clock noon ofthat day. Ifthere is any vacancy in the office ofan elector occasioned by death,refusal to act, neglect to attend, or otherwise,the electors present shall immediately proceed to fill it by voice vote, and plurality ofvotes. When all of the electors have appeared and the vacancies have been filled they shall constitute the college ofelectors ofthe state ofWashington,and shall proceed to perform the duties required ofthem by the Constitution and laws ofthe United States. Any elector who votesfor aperson orpersons not nominated by theparty ofwhich he or she is an elector is subject to a civilpenalty ofup to one thousand dollars. (Emphasis added.)No. 95347-3

ANALYSIS State Authority under the Constitution 

## Appellants claim that as presidential electors,they perform a federal function. Further,they contend that electors are intended to exercise independentjudgment in casting their ballots and that imposition ofa fine by state law for failing to vote in a particular way interferes with a federal function in violation ofthe Constitution. Electors rely heavily on the origins ofthe Electoral College,so we begin there. When the Electoral College was first created,there were a number ofcompeting proposals for selecting the executive. Some delegates to the Constitutional Convention of 1787 proposed that the national legislature should select the president. See Matthew J. Festa, The Origins and Constitutionality of State Unit Voting in the Electoral College, 54 VAND. L.Rev.2099,2109-10 (2001). Initially, this proposal generally enjoyed agreement. Id. at 2109. However,some feared that entrusting selection ofthe executive to the legislative 

### branch would compromise the independence ofthe executive branch. M. at 2110. As an alternative, one delegate suggested that the president be appointed by the people. Id. He 

### also suggested a system that divided the states into districts with an elector being appointed in each district who would then elect the president. As the debates continued,the two significant, competing proposals were direct 

### popular election and appointment ofthe executive by Congress. Id. at 2112-13. The idea ofa national vote gained support among the delegates due to strong concerns about the legislative branch appointing the executive. Id. at 2113. James Madison advocated for the national vote,but delegates from the small states objected, seeing it as 5No. 95347-3

disadvantageous for their states. Id. at 2114. When the delegates appeared deadlocked,a committee with one representative from each state was tasked with finding a reasonable solution. Id. at 2115. Ultimately, the committee returned with a proposal similar to today's Electoral College system—the president would be selected by a number of electors,based on the number ofmembers ofCongress each state was entitled to,who would be appointed by their respective states in such manner as they see fit. Id. at 2116. The system was later revised so that in the event ofa runoffelection, the president would be selected by the House ofRepresentatives and the vice-president would be elected by the Senate. Id. at 2119. When gathering support for ratification ofthe Constitution,Alexander Hamilton later wrote about the system agreed to in the convention and how it operated. See THE FederalistNo.68 (Alexander Hamilton). Hamilton noted the importance ofhaving the president elected by "men most capable ofanalyzing the qualities adapted to the station." Id. "A small number ofpersons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated

an investigation." Id. He opined that selecting several electors to nominate the president would be more prudent than having just one elector nominating the president. Similarly, having the electors vote secretly by ballot and within their respective states would serve to obstruct "cabal, intrigue, and corruption" from entering the electoral process. Id. The Electoral College system was adopted in article 11, section 1 ofthe Constitution and limits the number ofelectors from each state to the number ofsenators and representatives allocated to the state. U.S.CONST,art. 11, § 1, cl. 2. Additionally,no 6No. 95347-3



## senator,representative,or persons holding federal offices oftrust or profit could be selected as electors. Id. 

### The manner ofappointment ofelectors was left to the states. In the first 

## presidential election,the maj

ority ofstates decided their respective state legislatures would appoint electors to the Electoral College. See Jerry H.Goldfeder,Election Law and the Presidency:An Introduction and Overview,85 FORDHAM L.REV.965,968 

## (2016). Now,every state nominates electors through the popular vote. See id. Every state except for Maine and Nebraska employs a winner-take-all method ofallocating
elector votes. Id. 

### The initial Electoral College system was not without its flaws. The greatest 

### problem was that the Constitution did notrequire electors to vote for a president and vice-president separately. This oversight manifested in the presidential election of 1800. John Adams picked Charles Pinckney as his running mate,while Jefferson chose Aaron Burr. Id. at 975. Jefferson and Burr both received 73 electoral votes even though Bun

### was running for vice-president. Id. As a result ofthe tie,the presidential election was sent to the House ofRepresentatives. Id. To prevent a recurrence ofthe problem,the Twelfth Amendment was passed,requiring electors to cast one vote for the president and
one vote for vice-president. U.S.CONST,amend.XII. 

### Historically, the Electoral College has been largely a formality,as generally the electors would cast their votes consistent with the popular vote oftheir respective state. See Norman R. Williams,Reforming the Electoral College:Federalism, 

### Majoritarianism, and the Perils of Subconstitutional Change, 100 Geo.L.J. 173, 182

7No. 95347-3



## (2011). Indeed,even atthe outset,"presidential electors were understood to be instruments for expressing the will ofthose who selected them,not independent agents authorized to exercise their own judgment." Keith E. Whittington, Originalism, Constitutional Construction, and the Problem ofFaithless Electors, 59 Ariz.L.REV. 

### 903,911 (2017). However,there have been instances where an elector voted for another candidate. Williams,supra,at 182. Today most states require some form ofpledge by electors to vote for a particular party's candidate, and a number ofstates also have 

### adopted ramifications should an elector vote contrary to that pledge. Id. at 182 & n.36. Neither article II, section 1,nor the Twelfth Amendment addresses electors' discretion in casting their votes.^

^ Article II, section 1 ofthe Constitution reads,in part:

Each state shall appoint, in such manner as the legislature thereofmay direct, a number ofelectors, equal to the whole number ofsenators and representatives to which the state may be entitled in the congress: but no senator 

### or representative, or person holding an office oftrust or profit under the United States, shall be appointed an elector. The Twelfth Amendment reads: The electors shall meet in their respective states and vote by ballot for president and vice president,one ofwhom,at least, shall not be an inhabitant ofthe same state with themselves; they shall name in their ballots the person voted for as president,and in distinct ballots the person voted for as vice president,and they shall make distinct lists ofall persons voted for as president,and ofall persons voted for as vice president,and ofthe number ofvotes for each,which lists they shall sign and certify, and transmit sealed to the seat ofthe government ofthe United States,directed to the president ofthe senate; the president ofthe senate shall, in the presence ofthe senate and house ofrepresentatives, open all the certificates and the votes shall then be counted; the person having the greatest number ofvotes for president, shall be the president,ifsuch number be a majority ofthe whole number ofelectors appointed; and ifno person have such majority, then from the persons having the highest numbers not exceeding three on the list ofthose voted for as president,the house ofrepresentatives shall choose immediately,by ballot, the president. But in choosing the president,the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist ofa member or members from two-thirds of 8No. 95347-3



## Againstthis backdrop,appellants first argue thatbecause the Court in Burroughs v. UnitedStates, 290 U.S. 534,54 S.Ct. 287,78 L.Ed.484 (1934),held the electors in the Electoral College perform a federal function when casting their ballots,McCulloch v. 

## Maryland, 17 U.S.(4 Wheat.)316,4L.Ed.579(1819),precludes the State from 

## imposing a fine because it unconstitutionally interferes with a federal function. Br.of Appellants at 9. 

### Burroughs is one ofthe earliest cases where the Supreme Court has held 

## presidential electors perform a federal function when casting their votes in the Electoral College. In Burroughs,the petitioners were charged with multiple counts ofviolating the Federal Corrupt Practices Act,2U.S.C. §§ 241-256. The act was the first comprehensive campaign reform statute and required that federal candidates disclose financial information. Burroughs,290 U.S.at 540-42. The petitioners challenged the indictment, arguing in part that the act contravened article II, section 1 ofthe Constitution. Id. at 542. While the court noted,"[PJresidential electors are not officers or agents ofthe 

### federal government,they exercise federal functions under,and discharge duties in virtue

the states,and a majority ofall the states shall be necessary to a choice. And if the house ofrepresentatives shall not choose a president whenever the right of choice shall devolve upon them,before the fourth day ofMarch next following, then the vice president shall act as president,as in the case ofthe death or other constitutional disability ofthe president. The person having the greatest number ofvotes as vice president, shall be the vice president,ifsuch number be a majority ofthe whole number ofelectors appointed,and ifno person have a majority,then from the two highest numbers on the list, the senate shall choose the vice president; a quorum for the purpose shall consist oftwo-thirds ofthe whole number ofsenators,and a majority ofthe whole number shall be necessary to a choice. But no person constitutionally ineligible to the office ofpresident shall be eligible to that ofvice president ofthe United States.No. 95347-3



## ofauthority conferred by,the Constitution ofthe United States, the Court determined that Congress enacted the Federal CorruptPractices Actto "preserve the purity of 

## presidential and vice presidential elections." Id. at 545 (citation omitted),544. It did not "interfere with the power ofa state to appoint electors or the manner in which their 

## appointment"was made and was enacted only to address "political committees organized for the purpose ofinfluencing elections in two or more states. Id. at 544. The statute in
no sense invades any exclusive state power." Id. at 545. 

### In McCulloch,Congress passed an act to incorporate a national bank. Maryland 

## subsequently passed a law that imposed a tax on all banks in the state. See 17 U.S. at 425. When the tax was challenged,the State argued that Congress did not have the authority to create a national bank,and the states have the authority to tax such an institution. Id. at 

### 400. The Court engaged in a lengthy discussion ofwhether Congress had the authority to create a national bank. Congress,the Court held,has the power to "lay and collect taxes; 

### to borrow money;to regulate commerce;to declare and conduct a war;and to raise and 

### support armies and navies." Id. at 407. Although not expressly enumerated in the Constitution,the Court held the necessary and proper clause allowed Congress to pursue 

### means that are necessary to the advancement ofits enumerated powers. Id. at 418-20. Thus,the Court held the incorporation ofthe national bank was constitutional. Id. at 423-

24. 

### The national government,in being given the power to create the national bank,also impliedly wielded the "power to preserve" said creation. Id. at 426. Therefore,a "power to destroy, ifwielded by a different hand,is hostile to, and incompatible with these 10No. 95347-3



## powers to create and to preserve." Id. The Maryland tax on banks at issue,the Court held,is a power that "may be exercised so as to destroy [the bank]." Id. at 427. Although states have a right to tax the people and their property,"[t]he sovereignty ofa state extends to everything which exists by its own authority, or is introduced by its 

### permission." Id. at 429. The power to create a national bank however,was "not given by the people ofa single state"but,rather,"given by the people ofthe United States." Id. "[A]single state cannot confer a sovereignty which will extend over them." Id. Maryland,therefore, could not tax the national bank,as it interfered with a federal
function. 

### Appellants cite a number ofexamples ofstate actions that courts have held interfere with a federal function. In Goodyear Atomic Corp. v. Miller, the issue was whether a state could subject a federal nuclear production facility operated by a private entity to a workers' compensation provision for violating a state safety regulation. 486 U.S. 174, 178, 108 S. Ct. 1704, 100 L.Ed. 2d 158 (1988). The complainant in that case was injured while performing routine maintenance work at the plant. Id. at 176. He was awarded $9,000 in workers' compensation. Id. The complainant then filed for an additional award under state law,which provides additional compensation when an employer fails to comply with the state's safety requirements. Id. The Court stated that "federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides 'clear and unambiguous' authorization for such regulation." Id. at 180 (quoting Envtl. Prot. Agency v. State Water Res. ControlBd,426 U.S. 200, 211, 96 S. Ct. 2022,48 L.Ed. 2d 578 (1976)). However, 11No. 95347-3

the Court dismissed the issue ofwhether a supplemental workers' compensation award is


### a direct regulation by the states because "[the relevant federal statute] provides the 

### requisite clear congressional authorization for the application ofthe provision to workers at the Portsmouth facility." Id. at 182. Thus,the Court held that the private contractor could be subject to a supplemental workers' compensation award under state law. Appellants here rely on this case for the principle that a state may not "dictate the manner in which the federal function is carried out." Id. at 181 n.3. Similarly, courts have struck down actions taken under state constitutional provisions when they unconstitutionally interfere with federal functions. In Hawke v. Smith,the issue was whether the people ofa state could use popular referendum to veto the state legislature's ratification ofthe Eighteenth Amendment. 253 U.S. 221,224-25, 40 S. Ct. 495, 64 L.Ed. 871 (1920). In the state's constitution, any proposed amendment to the Constitution ratified by the General Assembly was also subject to a referendum by the people. Id. at 225. The Court held that "[t]he determination ofthe method of ratification is the exercise ofa national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods,by action ofthe legislatures ofthree-fourths ofthe States, or conventions in a like number of States." Id. at 227. "[T]he power to ratify a proposed amendment to the Federal Constitution has its

source in the Federal Constitution." Id. at 230. If the Constitution wished direct action by the people, it would have been explicit in doing so. See id. at 228 (citing U.S.CONST, art. I, § 2).

12No. 95347-3



### In Lbsct v. Gcifnett,the State ofMaryland challenged the validity ofthe 

### Nineteenth Amendment. 258 U.S. 130, 136,42 S. Ct. 217,66 L.Ed.505 (1922). The State had refused to ratify the proposed amendment. Id. The plaintiffs argued that several states have state constitutional provisions that render their legislatures 

### ratifications invalid.^ Id. at 136-37. As stated in Hawke,the Leser Court held that "the 

### function ofa state legislature in ratifying a proposed amendmentto the Federal Constitution, like the function ofCongress in proposing the amendment,is a federal function . . . and it transcends any limitations sought to be imposed by the people ofa State." Id. at 137. 

### Finally, appellants argue this court has also recognized the federal function 

### principle. In Department of

Labor &Industries v. Dirt &Aggregate, Inc.,this court held that state law cannot subject a federal subcontractor in a national park to its regulations. 120 Wn.2d 49,52-53, 837 P.2d 1018 (1992). The department in that case sought to 

### enforce provisions ofthe Washington Industrial Safety and Health Act of 1973 (WISHA),chapter 49.17 RCW,in the boundaries ofa national park. The appellees in that case had constructed a road within the park, and the department conducted noise and 

### air testing at the site solely under the authority of WISHA. 120 Wn.2d at 50. A 

### Washington State statute had ceded "'[ejxclusive jurisdiction . . .to the United States
over and within all the territory . . . set aside for the purposes ofa national park.'" Id. at 

### 52 (quoting RCW 37.08.200 (formerly Rem.Rev. Stat. § 8110)). Because exclusive

® It is unclear what specific state constitutional provisions were alleged to invalidate legislatures' ratification ofthe Nineteenth Amendment. 13No. 95347-3 

## jurisdiction now lay in Congress,wereasoned that "state regulation ofactivities within the federal enclave may resume only with the express permission ofCongress. Id. at 53. 

## Although the department argued the Occupational Safety and Health Act of 1970,29 U.S.C. §§ 651-678,and a WISHA operational status agreement with the secretary of labor granted it authority,we disagreed,holding that nothing in the language 

## "constitute[s]a specific and unambiguous grant ofauthority." Id. at 54. Based on the above line ofcases,appellants argue the imposition ofthe fine in this case constitutes state interference ofa federal function and should be struck down. 

### The State does not dispute that presidential electors perform a federal function 

### when casting a vote in the Electoral College. See Br. ofResp't at 12-13. Instead,the State argues that article II, section 1 ofthe Constitution grants to state legislatures 

### plenary power to appoint electors and determine the manner in which their appointment shall be made,and the fine falls within that broad grant ofauthority. Id. at 8. The State 

### argues thatRay v. Blair, 343 U.S. 214,72 S. Ct. 654,96 L.Ed. 894 (1952),McPherson v. Blacker, 146 U.S. 1, 35, 13 S. Ct. 3, 36 L.Ed. 869 (1892),and Burroughs support its position. 

### The issue in Ray,343 U.S. at 217-18,was whether a state statute requiring electors 

### to pledge their votes to a specific party candidate was unconstitutional. The Supreme Court ofAlabama struck the provision down,holding that the pledge was in violation of article II, section 1 and the Twelfth Amendment to the Constitution. Id. at 223. The 

### Court disagreed,holding that nothing in the Constitution prohibits an elector from "announcing his choice beforehand,pledging himself." Id. at 228. The Court went on to 14No. 95347-3

note,"History teaches that the electors were expected to support the party nominees. Experts in the history ofgovernment recognize the long-standing practice." Id. at 228-29 (footnote omitted);see also id. at 228-29 rm.15-16. Indeed,the Court held that while presidential electors exercise a federal function, "they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority ofthe state that in turn receives its authority from the Federal Constitution." Id. at 224-25. Ray supports the State's position that nothing in the plain language ofeither constitutional provision prohibits a state from imposing certain conditions on electors as a part ofthe state's appointment powers,including requiring electors to pledge their votes. In McPherson,the Court recognized that "the appointment and mode of appointment ofelectors belong exclusively to the States under the Constitution ofthe United States." 146 U.S. at 35. In that case, at issue was whether Michigan's legislature could require that presidential electors he nominated by congressional district rather than by popular vote. Id. at 24-25. The Court upheld the legislation stating:

Ifthe legislature possesses plenary authority to direct the manner of appointment,and might itselfexercise the appointing power byjoint ballot or concurrence ofthe two houses, or according to such mode as designated, it is difficult to perceive why,ifthe legislature prescribes as a method of appointment choice by vote,it must necessarily be by general ticket, and not by districts. Id. at 25. The Court noted that the State "acts individually through its electoral college [and]by reason ofthe power ofits legislature over the maimer ofappointment,the vote of its electors may be divided." Id. at 27. The Constitution does not provide how electors

15No. 95347-3



## shall be appointed,leaving it exclusively to the legislature to define the method of appointment. Id. 

### Also relying on Burroughs,the State argues that although the electors perform a federal function,that Court also noted that the State has exclusive power in appointing electors and the manner in which their appointment shall be made. See 290 U.S. at 544- 

### 45. As discussed in Burroughs,the only power left to Congress is '"the time ofchoosing the electors, and the day on which they shall give their votes.'" Id. at 544 (quoting U.S. 

### Const,art. II, § 1). Moreover,in In re Green,the Court stated the "electors for President and Vice President in each State are appointed by the State in such manner as its 

### legislature may direct." 134 U.S. 377, 379, 10 S. Ct. 586,33 L.Ed.951 (1890). "The sole function ofthe presidential electors is to cast, certify and transmit the vote ofthe State for President and Vice President ofthe nation." Id. (emphasis added). 

### The State has the better argument. In each case cited by appellants,the authority 

### thatpurportedly interfered with the federal function lay not in the states, but rather in Congress. Thus,the threshold issue was whether the State had been given authority to engage in activity that was specifically conferred to the federal government. For example, in McCulloch,the issue was whether a state had the authority to tax a national bank. The Court essentially held that states were not granted the authority to regulate national 

### corporations. A national corporation is a creation unique to the federal government under the necessary and proper clause to carry out one ofCongress's enumerated powers. The Constitution does not confer any authority on the states to interfere or control that manner.

16No. 95347-3



## Similarly,in Hawke and Leser,the Courtreasoned that the Constitution does not 

## grantto the people ofthe states the authority to interfere with the ratification of constitutional amendments. Instead,that power was specifically conferred to the 

## legislatures ofthe states to ratify. That same reasoning was followed by this court in Dirt &Aggregate where we held there was no explicit grant ofauthority by Congress for the states to regulate in federal parks. Contrast this with Goodyear Atomic where Congress 

## explicitly granted the states authority to enforce their own workers'safety regulations in conjunction with the federal workers' compensation statutes. 

### Unlike the cases appellants rely on for support that states cannot interfere with a federal function,here,the Constitution explicitly confers broad authority on the states to 

### dictate the manner and mode ofappointing presidential electors. Indeed,Ray undermines 

### the position ofappellants because,as noted,the Court there upheld the state s pledge requirement as constitutional. While appellants argue thatRay is limited to the primary election,the Court's holding clearly demonstrates the broad grant ofauthority to the states under article II, section 1. Burroughs and McPherson also reinforce the principle that the 

### manner ofappointment is exclusive to the states. As the Court in In re Green explained, the role ofthe elector is to "transmit the vote ofthe State for President," suggesting that 

### the Electoral College vote belongs to the State,not the individual elector. 134 U.S. at
379. 

### Finally,nothing in article II, section 1 suggests that electors have discretion to cast their votes without limitation or restriction by the state legislature. To the extent that the federal functions ofthe electors are mentioned in the Constitution, they are found in the 17No. 95347-3

Twelfth Amendment. The Twelfth Amendment simply requires the electors to meet at the specified date and time outlined by Congress and to cast two votes for qualified candidates—one for president and one for vice-president. The Constitution does not limit

a state's authority in adding requirements to presidential electors, indeed,it gives to the states absolute authority in the manner ofappointing electors. Thus,it is within a state's authority under article II, section 1 to impose a fine on electors for failing to uphold their pledge,and that fi

ne does not interfere with any federal function outlined in the Twelfth Amendment. Elector Discretion Auxiliary to the federal function argument above,appellants argue that electors
were intended to exercise discretion when casting votes in the Electoral College.^ "[I]t

was supposed that the electors would exercise a reasonable independence and fair judgment in the selection ofthe ChiefExecutive." McPherson, 146 U.S. at 36. Appellants cite to a few cases as persuasive. See Op. of Justices, 250 Ala. 399,400,34 So. 2d 598 (1948)(proposed amendment to statute that required electors to "cast their ballots for the nominee ofthe national convention ofthe party by which they were elected" was likely unconstitutional);Breidenthal v. Edwards, 57 Kan. 332,46 P.469 (1896)(candidate has no right to dictate how his name is to be placed on the electoral ticket); Order ofU.S. Court ofAppeals,Baca v. Hickenlooper,No. 16-1482,2016 U.S.

^ Appellants argue Hamilton's FederalistPapers supports the framers intended the electors to exercise discretion as they would have the '"information and discernment' necessary to choose a wise President." Br. ofAppellants at 16 (quoting The Federalist No.68 (Alexander Hamilton));see supra p. 6. 18No. 95347-3



### App.LEXIS 23391 (10th Cir.Dec. 16,2016)(denying motion for injunetion because plaintiffs failed to show they had a likelihood ofsuccessfully appealing). These cases, appellants argue,support their position that state legislatures are without authority to '"restrict the right [to vote] ofa duly elected elector.'" Br. ofAppellants at 19-20 (alteration in original)(quoting Op. ofJustices, 250 Ala. at 401). We find these cases inapt. The Opinion of Justices was an advisory opinion that 

### speculated on the constitutionality ofa proposed amendment before it was enacted. More importantly, it was published prior to Ray,which overturned that court's decision,in part, based on similar rationale to Opinion ofJustices. As to Breidenthal, appellants rely on one sentence that was not dispositive. In Baca,the plaintiffs filed for a preliminary injunction to prevent the secretary ofstate from removing them as presidential electors. But the court denied their motion,holding they failed to show there was a likelihood the plaintiffs would succeed on the merits. Appellants urge that Baca is instructive where the court, in dictum,noted the State ofColorado would be unlikely to remove a presidential elector after voting had begun both because the Colorado statute provided only for filling vacancies prior to the start ofvoting and "'in light ofthe text ofthe Twelfth Amendment.'" Br. ofAppellants at 20 (quoting Baca, 2016 U.S. App.LEXIS 23391,at *16 n.4). We find other language in the court's opinion far more relevant. Significant here,the eourt pointed out that the electors had failed "to point to a single word in any [constitutional provision] that support their position that the Constitution requires that electors be allowed to exercise their discretion in choosing who to cast their votes for."
Order at 10. 19No. 95347-3



## Appellants also argue a fine impermissibly adds new requirements that do not appear in the Constitution. They argue the only requirements to be nominated as an elector are that they cannot be a senator,representative, or other person holding an office 

## ofprofit or trust;they mustvote for at least one person who is not an inhabitant ofthe same state with themselves;and the person must be eligible for the office ofpresident. 

### See Br. ofAppellants at 21-22. Appellants cite two cases that they argue support their contention. In U.S. Term Limits, Inc. v. Thornton,the issue was a state's proposed 

### amendment that would prevent eligible candidates from appearing on the ballot ifthey have served more than three terms as a representative or two terms as a senator. 514 U.S. 

### 779,783, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995)(term limits for federal officers). The Court there rejected the proposed amendment,holding that the states lack power to 

### add qualifications. Id. at 805. In Powell v. McCormack,the Court held that Congress did not have the authority to exclude members-elect after they were duly elected by the people. 395 U.S. 486, 547-48, 89 S. Ct. 1944, 23 L.Ed. 2d 491 (1969). These cases 

### offer little support for appellants' position. U.S. Term Limits rests on explicit language in article I, section 2 that is not present here, and Powell is a limit on congressional,not state, authority. We acknowledge that some framers had intended the Electoral College electors to exercise independentjudgment,but the Court in Ray reflects the historic reality. As the Court noted, "The suggestion that in the early elections candidates for electors . . . would have hesitated, because ofconstitutional limitations, to pledge themselves to support party nominees in the event oftheir selection as electors is impossible to accept." Ray, 343 U.S. at 228. While "[i]t is true that the Amendment says 20No. 95347-3

the electors shall vote by ballot," "it is also true that the Amendment does not prohibit an elector's armouncing his choice beforehand,pledging himself." Id. Even ifread as narrowly as appellants urge,Ray's holding rests on a rejection ofappellants' position that the Twelfth Amendment demands absolute freedom for presidential electors.^ We believe thatRay disposes ofthis question.^ The Twelfth Amendment does not demand absolute freedom ofchoice for electors. In the same way that the Twelfth

^ We also note that appellants and amici argue elector discretion is required by the language of the Constitution. They argue the phrase "by Ballot"means a "personal, secret ballot." Br. of Appellants at 16;see also Br. for Amicus Curiae Independence Inst. at 3-5. While it is plausible that the framers meant for the electors to cast their ballots "in secret," it is equally plausible the framers used the word "ballot" to describe a device used to record the electors' votes. See Black's Law Dictionary 171 (10th ed. 2014)("An instrument. . .used for casting a vote.") Indeed, the names ofevery presidential elector is on a state's certificate ofascertainment submitted to Congress. See 3 U.S.C. § 5. Moreover,we know how Washington State's presidential electors individually voted for president and vice-president in the 2016 election. See Natalie Brand, Washington State Electors Votefor Clinton,Powell,Faith Spotted Eagle,King5 News(Dec. 20,2016,6:22 am),https://www.king5.com/article/news/politics/washington-stateelectors-vote-for-clinton-powell-faith-spotted-eagle/281-373558515; Liza Javier, PresidentialBallots, King5 News,https://www.documentcloud.org/documents/3243191- PresidentBallots.html; Liza Javier, VicePresidentBallots, King5 News, https://www.documentcloud.org/documents/3243190-VicePresidentBallots.html. A number of"faithless electors"have surfaced in prior elections. See, e.g., Subcomm.on Constitutional Amendments ofComm.on the Judiciary, 87th CONG., The Electoral College, Operation and Effect of

Proposed Amendments to the Constitution ofthe United States 9(Comm. Print 1961)(Henry D. Irwin ofOklahoma defected and voted for Senator Harry F. Byrd instead ofRichard Nixon);Note,State Power To Bind PresidentialElectors, 65 COLUM.L.Rev. 696 (1965). We know of"faithless electors" also appearing in our nation's early elections. See Note, supra,at 701 im.40-41 (In 1796,Federalist Elector Samuel Miles voted for the antifederalist candidates,Jefferson and Pinckney. In 1820,New Hampshire elector William Plumer voted for John Quincy Adams instead ofJames Monroe.). The fact that "faithless electors"have been identified throughout our nation's history suggests "ballot" simply means "to record a vote," rather than to vote in secret. ^ Appellants say thatRay is not controlling here because the Court did not address enforceability ofthe pledge requirement. They argue there is a distinction between moral authority and legal enforceability. See Reply Br. ofAppellants at 15-16. But Ray does make clear that the State may impose obligations such as a pledge and thus rejects unfettered elector discretion. 21No. 95347-3



### Amendmentdoes not prevent an elector from pledging himself,it does not prevent a state 

## from requiring its electors pledge to vote for its party candidate. First Amendment 

## Finally,appellants argue that imposing a fine violates their FirstAmendmentright to vote. In support,appellants argue that voting is an expressive act and is protected from any viewpoint-based restrictive state action. Br.ofAppellants at 28. Appellants argue their votes are a personal choice and the State musthonor that choice. See id. at 29-30. 

## Appellants rely on Miller v. Town ofHull,878 F.2d 523 (1st Cir. 1989). In that case,a municipal governing board removed members ofa public agency for failing to vote in a way the members ofthe board preferred. Id. at 527. The court held removal was unconstitutional because "the act ofvoting on public issues by a member ofa public 

### agency or board comes within the freedom ofspeech guarantee ofthe first amendment. This is especially true when the agency members are elected officials." Id. at 532. "The entire course ofconduct by the defendants supports the conclusion that the plaintiffs were 

### suspended because ofthe position they took as . . .members with respect to the housing project This was a violation oftheir first amendment rights." Id. at 533. The State, on the other hand,relies on Nevada Commission on Ethics v. Carrigan, 

### arguing that the case supports the imposition ofthe fine here. 564 U.S. 117, 119, 131 S. Ct. 2343, 180 L.Ed. 2d 150 (2011). There,the appellee was under investigation for 

### violating the State's recusal rules by voting to approve an application for a development 

### project that his longtime friend and campaign manager worked on. Id. at 120. The commission had concluded that he had a conflict ofinterest, and the appellee appealed, 22No. 95347-3



## arguing the law was unconstitutional under the FirstAmendment. Id. at 120-21. The Supreme Courtreversed the Nevada Supreme Court's holding that the recusal rules violate the First Amendment. In doing so,the Court held that "a legislator's vote is the 

### commitment ofhis apportioned share ofthe legislature's power to the passage or defeat 

## ofa particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people;the legislator has no personal right to it." Id. at 125-

26. 

### Nevada Commission is analogous here because electors act by authority ofthe 

### State. See Ray,343 U.S.at 224-25. It is the "sole function ofthe presidential electors . . . to cast, certify and transmit the vote ofthe State for President and Vice President ofthe nation." In re Green, 134 U.S. at 379. In essence,the electors are carrying out a state 

### government duty. See Garcetti v. Ceballos, 547 U.S.410, 126 S. Ct. 1951, 164 L.Ed. 2d 689 (2006)(speech made in the course ofa government duty is not protected by the First Amendment). Indeed,we note the federal district court recently engaged in a similar

I 

### analysis ofan elector's First Amendment rights. See Chiafalo v. Inslee, 224 F. Supp. 3d 1140, 1145 (W.D.Wash. 2016).^° There,the court rejected the plaintiffs First Amendment argument on similar grounds,recognizing that the "[rjelevant legal authority characterizes electors' role as 'ministerial' [and] limits the context in which the First 

### Amendmentprotects individuals performing their official, governmental duties." Id.

Some ofthe appellants filed for preliminary injunction in federal court prior to the State assessing the fine complained ofhere. Judge James Robart denied their preliminary injunction, rejecting nearly identical arguments the appellants make before us. 23No. 95347-3

(citation omitted)(discussing Thomas v. Cohen, 146 Misc. 836,262 N.Y.S. 320, 326 (Sup. Ct. 1933),and Garcetti, 547 U.S. at 421-22). The power ofelectors to vote comes from the State, and the elector has no personal right to that role. The "[appellants] chose to stand for nomination as an elector for their party, subject to the rules and limitations that attend the position. They also retain the ability to step down as electors without penalty." Id. (citations omitted). "[I]t is unlikely that casting electoral ballots implicates [appellants'] First Amendment rights." Id. We hold the First Amendment is not implicated when an elector casts a vote on behalfofthe State in the Electoral College.
CONCLUSION Article II, section 1 ofthe United States Constitution grants to the states plenary power to direct the manner and mode ofappointment ofelectors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector's violation ofhis pledge. We affirm the trial court.

24No. 95347-3

WE CONCUR:

-4 

# \^Dm lucv^l / Ci

25In the Matter ofLevi Guerra, et al.

No. 95347-3

Gonzalez,J. (dissenting)—In 1976, Michael J. Padden, a Washington elector, voted for Ronald Reagan even though the Republican Party nominated 

### Gerald Ford.' The following year,the legislature enacted a law requiring electors to vote for the candidates nominated by their political party or face a civil penalty ofup to $1000. Laws of 1977, 1st Ex. Sess., ch. 238, §§ 1-2. In 2016,the electors before us did not vote for the candidates nominated by their party. We must decide ifthe State has the constitutional authority to impose a civil penalty on them. The majority upholds imposition ofthe civil penalty. 1 respectfully dissent. The State's authority to penalize its electors is an issue offirst impression. Ray V. Blair concerns only the broad authority to appoint electors. 343 U.S. 214, Til, 72 S. Ct. 654, 96 L. Ed. 894 (1952)("It is an exercise ofthe state's right to 

### appoint electors in such manner, subject to possible constitutional limitations, as it

' Official Ballot for the Position ofPresident (Dec. 13, 1976)(on file with Wash. State Archives, Electoral College and Federal Election Certifications, 1948-2012).In the Matter ofLevi Guerra, et al.No.95347-3 (Gonzalez,J., dissenting)



### may choose." (citing U.S.Const,art. II, § 1)). The Court addressed the constitutionality ofrequiring electors to make a pledge but did not address the elector's discretion. Id. at 228. In dissent, Justice Robert H.Jackson raised
concerns about an elector's freedom to exercise independent judgment as originally intended. I share his concems. He opined,"No one faithful to our history can deny that the plan originally contemplated,what is implicit in its text, that electors would be fr ee agents, to exercise an independent and nonpartisan judgment as to the [individuals]best qualified for the Nation's highest offices." Id. at 232 (Jackson,J., dissenting)(citing The Federalist No.68 (Alexander Hamilton)). There is a meaningful difference between the power to appoint and the 

### power to control. "A power not expressly listed [in the Constitution]is granted only ifincidental to an enumerated power." Br. for Amicus Curiae Independence Inst. at 8 (citing McCulloch v. Maryland, 17 U.S.(4 Wheat.)316,405,4 L.Ed. 579 (1819)). The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S.Const. art. II, § 1. Therefore,the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party. I respectfully dissent.In the Matter ofLevi Guerra, et al,No. 95347-3 (Gonzalez, J., dissenting)