The Volokh Conspiracy

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Electoral College

Request for local counsel in Washington State

Amicus brief on electoral college discretion


[Update: We now have local counsel. Thank you to everyone who volunteered!]

Currently before the Washington Supreme Court is a case involving the freedom of choice of members of the Electoral College. My Independence Institute colleage Prof. Rob Natelson and I would like to file an amicus brief in the case. Since neither Rob nor I are admitted in Washington, we are searching for a Washington attorney who would like to serve as local counsel, and take care of filing the brief. If there are costs associated with the filing, we can cover them.

The brief focuses on the text and original meaning of the presidential elector provisions in the original Article II, and in the Twelfth Amendment. The brief argues that presidential electors have the discretion to vote their conscience. Accordingly, a state legislature may not force electors to vote for particular candidates. In 2016, several Washington electors on the Hillary Clinton slate attempted to vote for a different candidate, but were blocked by the Washington Secretary of State, who was enforcing a Washington statute that presidential electors must vote for whomever wins the popular vote in the state.

Of course there are various pro/con policy arguments about the Washington statute. In our view, the Washington Supreme Court should at least be informed about the text and original meaning of the relevant constitutional provisions.

The brief will be similar to one that we filed this summer in the Tenth Circuit, involving Colorado electors. I summarized that brief in a VC post at the time.

If you would be interested in serving as local counsel, please email me: david at