In the 2016 presidential election, a majority of voters in the state of Washington voted for Hillary Clinton. As a result, a slate of electors pledged to the nominees of the Democratic Party was appointed to cast the state’s electoral votes. Under Washington law, electors who vote for someone other than the candidates they were appointed to support may be fined $1,000. When three of Washington’s electors cast their presidential votes for Colin Powell and one cast a vote for Faith Spotted Eagle, they were fined $1000 each. The three who had voted for Colin Powell challenged the fines in state court, arguing that the constitutional provisions governing presidential elections entitle presidential electors to vote for whomever they wish, regardless of state law. They also claimed a First Amendment right to override the preferences of Washington’s voters. The Washington state courts rejected these arguments.
The three electors then petitioned the U.S. Supreme Court for review, presenting both their structural constitutional claims (based on Article II and the Twelfth Amendment, as well as the Supremacy Clause) and their First Amendment claims. In their merits brief, however, the electors dropped their First Amendment arguments. In Public Citizen’s amicus curiae brief supporting the state, we pointed out that the electors expressly asked the Court to rule on the First Amendment issue and then failed to support their First Amendment argument in their brief. Public Citizen’s brief urges the Court to consider ruling on the First Amendment issue to make clear that it lacks merit: The First Amendment does not protect electoral voting, which is not speech, but an official exercise of a portion of the state’s authority to participate in the selection of the president.