The Argument For Why Presidential Electors Should Be Free

This is Larry Lessig, and this is another episode of the podcast Another Way, produced by Equal Citizens us. In today's episode, we're going to introduce the case that we will be arguing at the Supreme Court. Right now, the schedule is for April, which we're sure is going to shift. Given the present crisis that is, of course, sweeping across the country and the world, it might be a little odd to have a podcast focused on anything other than that Corona crisis. And we are very sensitive to the incredible anxiety and pressure that that crisis is creating for many people around the country. But as a distraction at least, or as a focus on issues beyond this crisis, we wanted to offer this podcast and the conversation it will include as a way to think about something a little bit different. So in this podcast, I've invited my friend, my co worker, my co counsel, Jason Harrow, who is the chief legal officer at Equal Citizens, also the executive director of the organization and the lawyer who will be arguing one of the two cases that will be before the Supreme Court. Supreme Court about the Electoral College. And our objective over the course of this and two other episodes, one of those episodes will be broken itself into two parts. We want to cover the scope of the cases that we are currently bringing around, the questions of the Electoral College. And the objective across the three of these episodes is to first, understand the legal issues. That's what we're doing going to talk about today. Second, to understand the factual background a little bit more. What brought these cases into the system, what motivated the people who originally took the actions which are now going to be reviewed by the Supreme Court. That's the pair of episodes that we will have next. And then finally, after we cover this case, we're going to talk a little bit about where we want to go. That will be the third part or the third episode in this trilogy that will describe what we think should happen to the Electoral College, given what we think the Supreme Court will say, the law says about the nature of the Electoral College. So we're going to conduct this interview or this conversation as a kind of mock trial. And I'm going to put my co counsel, Jason into the hot seat and I'm going to introduce it a little bit colloquially to bring us all to the same place about the nature of the Electoral College, but then really drill down and ask a series of questions that through the course of the questions should make everyone aware of what the issues are and why we think ultimately the Supreme Court is going to agree with us that electors are constitutionally free to vote their conscience despite the desires of states to control how they vote. So the background, everyone knows that the Electoral College is at the center of electing our president. And the Electoral College is composed of electors. And it's the nature of electors and the power they have that's at the core of the case. This case is actually two cases. One came out of a dispute in Washington State where four electors voted contrary to a pledge and the law that required them to vote. And for the winner of the popular vote, Hillary Clinton, and one elector in Colorado, a second case, who was removed as an elector because he cast his vote contrary to how he was directed by law, and two other electors who tried, but then, because they saw what happened to the one, Michael Baca, decided they would not go through with that vote. These two cases were reviewed by the highest court in their relevant jurisdiction. Washington was reviewed by the Washington supreme court. And the 10th Circuit reviewed the case coming out of Colorado. And both courts essentially answered the same question, whether states have the power to direct how electors can vote. And the answers they gave to those questions were different. The Washington Supreme Court concluded that it was within the scope of the power the Constitution gives to the states, that the states could control how electors will vote. And the 10th Circuit reached exactly the opposite conclusion, holding that, in fact, the Constitution requires that electors be free. That conflict, or what's called a split in the authority of these highest courts or the courts of the highest jurisdictions in the relevant context, created the necessity for the Supreme Court to take the case. And. And we expect the Supreme Court will resolve the dispute between these two high courts before the next election. And it's that dispute, the legal issues behind that dispute, that will be the core of what we're going to talk about today. So let's shift into that conversation. Mr. Harrow, these electors that vote for the president, how are these electors selected?

Well, Mr. Lessig, the.

I'm sorry, it's Justice Lessig.

Justice Lessig. Okay. In reality, I'll keep my fingers crossed, Justice Lessig. But we'll go with that for this podcast. So, Justice Lessig, the process starts in the spring of a presidential election year. And in at that time, that's when political parties start the process of nominating presidential electors. Because the states, all states in the union, all 50 plus the district of Columbia, get a number of electors, electoral votes, which are cast by presidential electors. And how many, how many they get, According to Article 2 of the Constitution, they get the number of senators plus the number of representatives to which they're entitled. So that minimum number is three, because everyone has two senators plus at least one representative. And the maximum today is 55. California has 53 representatives plus its two senators, gets 55. And, and by constitutional amendment, D.C. over there as not quite a state, but getting electoral votes by law gets three. They get the minimum number. And so Article two, if we could back up a little further before returning to the spring of 2016, which is the relevant time period for these cases, Article 2 gives states the power to appoint these presidential electors in any manner that the legislatures may direct. Every legislature today, though not in our history, as I'm sure we'll talk about Justice Lessig, Every legislature today appoints electors through a system that involves both the party and the popular voters. And what happens is that the parties collectively get to nominate slates of electors. And so in our case, we represent two sets of electors for the Democratic Party because they were states in which Hillary Clinton won the popular vote, and the Democratic Party in those states started the process of nominating electors at a district level as well, at a statewide level in the spring. And ultimately, these are people that most voters don't really know much about, but they're often party insiders. One of our clients, as you know, Justice Lessig, is a remarkable woman named Polly Baca, who is actually the first female state senator in Colorado history, and she's a longtime supporter of the Democratic Party and indeed legislator in that party. And she was chosen as an elector for Hillary Clinton. Should Hillary Clinton win the popular vote in the state of Colorado, other electors are chosen differently. Our client, Mike Baca in Colorado, he considers himself a Bernie elector, but he was nonetheless chosen in his district in Colorado. And all of this came to a head around the time, of course, of the summer of 2016, when these political parties submit their slates of electors for nomination to the state. And that's what voters are actually voting on Justice Lassig in, in November. So what then happened?

Okay, but let's just, let's hold on. First of all, the Justice Lessig stuff is getting a little bit weird. So let's just, we can just drop that. But here's the. But here's the. Let's, let's focus on the language of the Constitution, because I want to make sure I understand how this process is plugging in. The Constitution says the states have the power, quote, to a point, in such manner as the legislature thereof may direct a number of electors. So what you're saying is, in these states, what the legislature has done is the legislature has said there will be a popular election and the winner of the popular vote in those states will then determine the slate of electors that go to the electoral colleges. Is that the way it's working on each of these states?

Exactly. That's exactly right. Right.

So has that always worked like that, or have there been other ways in which electors have.

It's worked like that for quite a long time, but not always. Always is a strong word at the Founding, as you know, Larry, and if I may call you that now, as you suggest.

Anything, just call me anything. Joe would be fine, too.

At the Founding, there was really quite a robust mix of ways in which electors were appointed. In the very first election, some state legislatures chose electors directly. That is, there was no popular vote. There was selection by district, similar to how people would have a congressional district. They would also have a district for presidential elector, or there was also popular vote by slates of presidential electors statewide.

So, wait, so in the first case, picking by legislature, you mean the legislature would just vote on a list of names and they would say this list of names will be our electors?

That's exactly right. If they could get their act together. As you know, one interesting quirk of history is that in the very first election, New York, the New York legislature, couldn't even get its act together. And so one manner of appointment was null, set was nothing. But most other states did get their act together. And as you mentioned, Larry, a common way was for state legislators, who, we should add, were fairly recently chosen. So there wasn't years between their elections and the appointment, but were fairly recently chosen. They selected electors that they viewed as being able to exercise judgment about who should be president. Now, that's important, Larry, because in that very first election, it was clear that George Washington would be the president. But the important point is there were really no political parties then. So legislatures really were choosing people, as best we can tell, through a combination of merit and just prominent folks in the community that would go do this one job that, as you mentioned, Article 2 says they are entitled to do, which is vote by ballot for president and vice president.

Okay, so the legislature could decide, here are the prominent people. Well, I mean, let's not sugarcoat it. Here are the prominent men in our district or in our state who we want to go think about who the president should be. In the first election, everybody knew that would be Washington. Washington was reelected. But then the first contested presidential election is 1796. And at that point, right, it's not clear who should be president, or at least it's not clear to most people in the country.

Who should be? Not at all. And in fact, it was an extremely close election, one of our closest. Ultimately, the main competitors were John Adams and Thomas Jefferson. John Adams was running for the nascent sort of Federalist Party, running on the platform of a stronger national government, and Thomas Jefferson on the Democratic Republican platform of more states rights. And what we would know now as more of a federal system, despite the name that the Federalist Party took, which was really more nationalist in orientation. And this election, Larry, was really, in some ways, I think people would recognize it. It was the first modern election because it did have two parties with two tickets that were really the primary options. But it was so different from what we imagined because electors really did exercise great discretion. And that, as we'll talk about, is very relevant for the way we think the Constitution needs to continue to be interpreted. But in that election, Larry, John Adams won by just a hair. 70 was a majority of electors. And the Constitution says that in order to be elected president, one needs a majority vote. Of all the electors available, 70 was the border. And John Adams received 71. Thomas Jefferson received 68.

So John Adams gets 71. But in many of the states, there's no vote. Right. Many of the states are just simply picking electors through their state legislature. And those state legislature electors are just deciding they like Adams.

Exactly. And in many states, Federalist legislators pick electors expected to vote for the Federalist. But there's a big asterisk there, because what does that mean? What does it mean to vote for the Federalist ticket? Because remember, Larry, at this time, Article 2 doesn't let presidential electors differentiate between votes for president and votes for vice president. So Article 2 gives each presidential elector two votes, and then it sets up a system where the number one vote getter, as long as that's a majority, becomes president and the number two vote getter becomes vice president. Well, this system, you can imagine, works pretty well when people are using it outside of a party system and thinking about who's the best person to be president and who's the second best person to be president. It works exceedingly poorly in a system with political parties, because if each elector votes both of their votes for the ticket, that is, uses the first vote for John Adams if they're a Federalist, and the second vote for Thomas Pinkney, Adam's running mate. What do we have, Larry? We have a tie automatically.

Yeah, we'll get to that. We'll get to that. But there's actually one other feature of this original design which I thought was really clever. So they Recognize, of course, that the system is going to make it hard to figure out who the president should be, especially after somebody like George Washington, the clear presumptive president of the initial administrations. But in order to try to drive the electors to think about who would really be in the interest of the nation as a whole, there's a curious and I think kind of clever little requirement built into the obligations on electors. Electors are genuinely free to vote however they want, where there's nothing in the Constitution to restrict them except in one clear sense and maybe a couple other indirect senses. But the clear sense is an elector can't vote for two people from his own state. And the general thinking at the time was, geez, you know, they'll all have a favorite son candidate, they'll all have a candidate from their own state who they think should be president, and that's who they'll vote for first. But when they get to their second vote, they'll be thinking, who's the actually best person in the nation who doesn't happen to be, you know, my brother in law, who I should vote for? And the idea was that if everybody thought who is that second best person, that second best person could turn out to be the greatest candidate. Lincoln went to the convention. Totally different system, obviously, but the convention in 1860, wanting to be everybody's second choice, recognizing that when the first choices had bloodied their noses and had disappeared from the stage, everybody would rally around him and he would be the obvious choice for the, for the convention. And that was the system they imagined originally. And it worked fine for Washington. It got bloody with Jefferson and Adams because the result of that. Right, the result of that count, as you put it, Jefferson with 68 and Adams with 71, is that Thomas Jefferson was vice president.

Exactly. And he was a begrudging vice president, Larry. I think we can put it. He was a member of the opposite party and he was in no way delighted to become the vice president. He was running for president as an opposition to John Adams platform and he ends up, after the vote of the electors, he ends up as vice president with a president from the opposite party.

Yeah. So imagine Hillary Clinton had been vice president with Donald Trump. It would have been, well, it would have been entertaining tv, no doubt, but it would have been kind of a disaster to imagine. And so they must have pretty quickly realized that when we move into a world where we don't have a presumptive presidential candidate, we're going to have to figure out a different way to, to elect the president to make sure we don't get the Adams Jefferson conflict again. Those two guys during this period really hated each other. But they were close friends before this period. And by the end of their life, I think they die within a couple hours of each other on July 4, an anniversary of the Declaration of Independence. But they become very close friends once again. But they realize the system they've built is clearly flawed. And then in 1800, the system is again tested and its flaws are even more clearly illuminated. Right.

Yeah. Well, you think it's bad to have a president and vice president of the opposite party. 1800 ends in a tie. And again, you like to imagine things in the modern era. Imagine what cable news would do today if the electoral vote ended in a tie and we didn't have an immediate president. Well, the Constitution has a way of dealing with that before the 12th amendment.

Okay, but wait, wait, wait, wait. But wait. A tie between the two people running for president.

Yes, exactly. So, as I mentioned earlier, and I should say who the tie was between, it was between Thomas Jefferson and Aaron Burr, ostensibly running mates for the Jeffersonian Party, the Democratic Republican Party. But as I mentioned a couple of minutes ago, Larry, the original Electoral College didn't let electors pick between votes for president and vice president. So once parties started to form, the idea was that a couple of electors, maybe even only one, would not vote for the presumptive vice president. They would vote for someone else so that the vice president would lose by one and one only, and then be installed as vice president after all the electoral votes are counted. Someone didn't get the memo, Larry. Memos weren't very easy to get back in 1800. And so all of the electors expected to vote for Jefferson did, but all of the electors expected to vote for that same party also voted for Aaron Burr. And there was no way to tell who should have been president and vice president. And so it ended up in a tie.

So it worked pretty well for the Federalists. Right. So Adams again was running against Jefferson. And in Adams's case, Adams got one more electoral vote than his running mate. Not Charles Pinckney, but Thomas Pinckney. Right, the brother of Charles Pinckney. So it's a different Pinckney, but the point is he gets one less because one vote has been basically thrown away on John Jay. So they get the memo. You're a little charitable. I think, to the devious Burr. It's pretty clear, I think, from the evidence that Burr got the memo, his people got the memo. They just hoped that they could trick the system so that Burr would actually become the president because indeed, when the tie went to the House, which is what you were about to say, the tie has to go to the House under the Constitution, and the House has to vote immediately. And the House votes. One state gets one vote. So the delegation in each House has to figure out how they're going to vote. And in this case, it took more than 30 ballots before they finally settled on a nominee. The really screwy part of the system was that it was the old House that got to decide. We had an election where the Federalists had been trounced. The Jeffersonian party had really prevailed and won overwhelmingly across the country. Not in the. Not only in the presidential election, but in the congressional election, too. But it was the old Congress with Federalists who were deciding who the next president would be. And Burr tried to strike a deal to get some of those Federalists to vote for Burr because they said. Because he said to them, or his people said to them, look, you hate Jefferson. So, look, here's your chance to screw Jefferson and pick Burr over Jefferson, which would have been a complete outrage, but perfectly consistent with the character of Aaron Burr, who subsequently went on to become somebody waging war in treasonous ways against the United States. So he goes down in history in a really ugly way. But this is the most embarrassing feature of the system that you would allow conniving people like Burr to basically try to flip the results so that the person intended as vice president would become vice president.

And so that had to be fixed. Larry, after two really difficult elections, and in 1803, with now strong majorities in both houses, the Jeffersonian party, to paraphrase the musical, Hamilton, has the votes to get through a constitutional amendment, if just barely. And that constitutional Amendment is the 12th Amendment, which, Larry, as you know, we talk a lot about in our case, and the 12th Amendment changed a few really important things and also left in place a few really important things.

So what did it change?

So it changed this feature that led to this tie between Jefferson and Burr, which is the fact that these presidential electors had no way of differentiating between a vote for president and a vote for vice president. And it allows what's called designation. So each presidential elector now nominated in the same way that Article 2 still says are nominated, which is states appointed by states in a manner directed by the state legislature. Those same electors, same number, get to vote by ballot for two different offices, vote by ballot for president, and vote by ballot for vice president, and tally them up differently. So that's a key change. And since that time, we've never had a recurrence of the 1800 system because it can't happen. Now. We know who people are voting for president, and we know who people are voting for vice president. And if they get the same number of votes, we know who should be president and who should be vice president. And that's what's happened. So that was a successful change. I think we can say that was a successful change. Now, they didn't change something really critical though, which was the fact that presidential electors are still people, the fact that they still vote by ballot, and the fact that voting by ballot means that presidential electors have the authority and right to vote for whoever they wish to vote for. That was happening frequently.

Okay, so that's the part. That's the part we gotta be clear about. So how do we know that they knew that they had the right to vote for whomever they wanted to vote for? It was pretty clear they had to muck about to make sure that the vice president didn't get elected president. And again in 1800, the Federalists were pretty disciplined in making sure that happened. But how do we know that at that time they understood that electors would exercise discretion and vote contrary to how they might originally have been pledged?

I think there's two big categories of ways that we know, Larry. The first is the historical practice, and the second is the words of the Constitution. Now, let's start with history. Yeah, the history here is clear that what you just called mucking about happened with frequency. And people knew that it was mucking about. So in 1796, which was, again, as we say, not the very first election, but the first election with prominent political parties running slates of president and vice president against one another. That election saw a huge deluge of what you might call anomalous electoral votes. That is presidential electors voting for people that are not on the ticket but that they view as worth voting for. The numbers as we calculated them were that there were 79 total electors who voted straight ticket and 59 total voters who voted anomalously. So that's a huge percentage. And it doesn't go unnoticed. We should also say it goes noticed frequently, including prominently one elector in Pennsylvania whose name is Samuel Miles. And Samuel Miles came from a state where he ran as a Federalist elector. He was supposed to vote for John Adams, by all rights, but he ended up voting for Thomas Jefferson, and he did.

So this history is really important. So Pennsylvania has a law that requires the governor to certify electors like every state does. That's the way an elector gets to be an elector, the governor says, here are the electors as the legislature is directed. But there was a flaw in that law, right. That required the governor to certify too quickly. So at the moment the governor has to certify, he's not sure what the election results in Pennsylvania are. And he in particular thinks that the election results in Greene county, which is a county on the western side of Pennsylvania, is going to go for Adams. And that leads him then to appoint Miles.

Right, Exactly.

So Sam Miles is one of two Federalist electors that get added to 13 Jefferson electors, or Republican Democratic Republican, as they called them back then, just to make it confusing. Democratic Republican electors. So the slate of electors from Pennsylvania of 15 included 13 Jefferson electors and 2 Adams electors. So how did that slate then vote in the 1798, 1796 election?

Well, there were 14 votes for Thomas Jefferson and only one vote for John Adams. Because Sam Miles decided, in light of what the popular vote turned out to be, after all the votes in Greene county were counted, where Jefferson really had won all of the electors or should have gotten a slate of presidential electors that supported him, he decided to cast his vote for Thomas Jefferson instead of John Adams. Meanwhile, this other federalist elector who was appointed exercised a different type of discretion and maintained his vote for John Adams, because, after all, he was an elector loyal to the Federalist party. And he stuck with that despite what the votes were in Greene County.

Okay, so here's the puzzle. So when the governor certified the electors, he thought, based on what he thought would come out of Greene county, that Adams would win in Greene County. But then when Adams lost in Greene county, why didn't the governor just change the certification? Why didn't he say, oh, sorry, it's not these two federalist electors who should be in the slate of electors. We should have 15 Republican or Democratic Republican electors. So we're going to recall two of them and send you two others.

Well, the answer goes back to Article 2 of the Constitution, Larry, and that is that the Constitution gives the governor, acting in a manner directed by the legislature, the power to appoint electors. And Samuel Miles was appointed according to laws in place in Pennsylvania at the time in 1796. But that's it, Larry. The governor has no opportunity to control electors or to see what electors actually voted. And after the vote say, I don't like that vote, I want to do something else. Those aren't the votes of the governor. Those are the votes of the electors. And the governor has only the power to carry out that Appointment and not.

The part I don't get is that. The part I get is that, you know, we can talk about whether he can control the vote, and that's obviously at the core of the cases that will be before the court. But I want to start with, why can't he just remove the elector? I mean, usually if you have the power to appoint, you therefore have the power to remove. That's what the President has. Whenever the president has the power to appoint someone, typically he has the power to remove, unless they've got special tenure, like judges have life tenure. So why couldn't the governor say, look, I got the power to appoint this guy, Turned out to be the wrong elector. We didn't have the votes counted. Right. So I'm going to remove this elector and going to give you new electors, and this is the new appointment. Why wouldn't that have been the solution for Pennsylvania?

Well, it's, of course, difficult to go back in time in 1796 and understand what everyone was thinking in a totally different political milieu. But as best we can tell, we understand that the actors at the time understood there to be a separation of powers here. That is, there was an appointment power that the governor had, and the electors could then exercise the power to vote. So the governor knew that he had the power to appoint electors. He did it. There was a date by which he had to do that, and that was it. That was the appointment power. And it ended there, Larry. And then it was up to the electors to go vote.

Okay, so when Sam Miles voted in a way that the governor and the people who voted for the Federalists expected he would not vote, namely, when Sam Miles voted for Thomas Jefferson. I take it people noticed, right?

Oh, people definitely noticed. There are newspaper accounts at the time of people being displeased with this, that commentator saying that the voters didn't vote for these presidential electors to think, but instead to act. And the actions were for Federalist electors to vote for Federalist candidates, that is John Adams, and for Democratic Republican electors to vote for the Democratic Republican candidates, that is Thomas Jefferson and Aaron Burr. Now, of course, Sam Miles obviously viewed his election differently. He understood that he was in some ways a loyal partisan to the Federalist Party and John Adams. But he also knew what the voters of Pennsylvania had said. Had all the votes been counted, and had all the votes been counted, they would have said, vote for Thomas Jefferson. And so he had a dilemma. And I think the key point for our case, Larry, is that he resolved the dilemma by choosing to exercise his own Discretion to carry out the popular will as it should have been carried out, as we know from the tally of the popular votes and voting for Thomas Jefferson. Now, why are we spending so much time on Sam Miles when we were thinking about what happened in the 12th Amendment? The reason is that everyone knew that this had been happening for the 1796 election. And indeed there was an anomalous electoral vote in the 1800 election as well. And no one who was authoring the 12th Amendment wanted to change that. The vote.

Okay, so let's just be very clear about why this is significant. So there is a practice that everybody notices. Whether everybody likes it or not, they at least notice it. And the practice is that electors, even though appointed by a particular party, don't necessarily vote for the party they are appointed by. So that means that they act anomalously. And if everybody knows that prior to the 12th Amendment and then the 12th Amendment is ratified, but the 12th Amendment doesn't talk, address or even consider the problem of these so called anomalous votes, or might not be a problem, might be a feature, not a bug, but that doesn't even address it. That means that the framers at the time of the 12th Amendment embraced the practice and did not modify the practice. And the practice was electors were free to vote regardless of how they might have been appointed. That's going to be your argument.

That is our argument, Larry. I think that's a really good way of putting it. And we should now, I think, move forward in time and note that the issue dies down somewhat in the 19th century because political parties are relatively strong and a new norm ends up coming into effect where presidential electors tend to be tend to be loyal to the parties that they are expected to vote for. So we go through many elections where the electors for the Democratic Republican candidate, or what becomes the Republican Party, end up voting for that candidate. And when there's a Whig party, the Whig candidates vote for the Whig. The Democratic Party, same thing. But the key point Here throughout the 19th century, Larry, is that nothing changes about the Constitution and there are no state laws that attempt to actually require this outcome. It's just a matter of custom, which is frequent in our system, but that is nonetheless how the custom evolves.

Okay, so let's jump ahead, because I'm going to jump ahead and then come back a little bit. But let's jump ahead then back to 2016, the election of 2016. Obviously there was something similar to what happened in Pennsylvania in the sense that Pennsylvania in 1796, in the sense that the electors who were selected were selected even though the winner of the popular vote on the national level was not the winner of the Electoral College vote. And so there were, in fact, two electors who are Republican electors. We don't represent them, and they've not been part of these cases who decided not to vote for Donald Trump, not so much because they believed in Hillary Clinton or wanted to vote for Hillary Clinton or believe that the winner of the popular vote should win, but they didn't think Donald Trump should be president. So they voted against Donald Trump. But the electors that we represent are Democratic electors who voted against, who did not vote for Hillary Clinton, the person they were supposed to vote for, but instead voted for Republicans. And so what was the motive of them voting for Republicans when they had been nominated to be Democratic electors?

Well, that story, Larry, I think, begins really the day after the popular vote, when it becomes clear, as you mentioned, that Trump was going to win presumptively in the Electoral College, or at least have a slate of electors that would presume to be loyal to him, but would lose badly in the popular vote by more than 3 million votes. And that got one of our clients, Mike Baca, who you were alluding to in Colorado, thinking about, should that happen, and are there ways for presidential electors to use what, let's call it the Samuel Miles power in honor of him in 1796, to try and channel the popular will in a different way perhaps, than he's expected to. And what they start exploring is the possibility of having a more moderate Republican candidate finish third in the Electoral College. Why is third key? Third is key because the Constitution says that if no one gets a majority of electoral votes, that is 50% plus one, then the House of Representatives gets to choose not from the top two candidates, but from the top three candidates. And so Bacchus thinking was, if we make it so that A, Donald Trump does not get a majority in the electoral vote, and B, there is a moderate Republican who comes in third, then maybe, just maybe, the House of Representatives will choose that moderate Republican, and maybe that will actually be a better reflection of the popular will than voting in Trump, who lost the popular vote badly, or Hillary Clinton, who failed to secure an electoral vote majority.

Okay, so we're gonna hear in their own voices exactly what they were thinking when we do the next episode of this podcast and bounce between our questions and our clients. But the clear point right now is that they believed they had the power, the discretion to vote contrary to their pledge, even though in both Washington and in Colorado, the law directed that they should vote for the winner of the popular vote. And in Washington, if they didn't, they would get fined. In Colorado, it wasn't clear what would happen if they didn't. But the Secretary of State thought that he had the power, therefore, to remove one of the electors and substitute somebody else in the sense that the governor in Pennsylvania in 1796 didn't think he had the power to remove Sam Miles and substitute someone else. Okay, so now we want to get to exactly why the Constitution might conform to what we said the historical practice was. Because ordinary people listening to say, who cares what happened in 1796? Why is that relevant to what the Constitution requires? Why don't we figure out what the Constitution requires by looking at the words in the Constitution? So the Constitution says that the states have the power to appoint. We've touched on this a little bit. But why doesn't that mean that the state, in exercising the appointment power, gets to tell the people they appoint how they have to vote?

The succinct reason, Larry, is that the appointment power is different from two other powers. The power to control an appointee and the power to remove an appointee. And we know that, not just because we have three different words for those concepts, but we know that because our Constitution is one of separated powers. And therefore, it is a presumption that different actors get to exercise these rights and powers that they have, and that merely being appointed by someone else does not mean that that appointing authority gets complete control to dictate the carrying out that function or to fire the person appointed.

So where do we see that?

We see this in a huge variety of places. I think for many listeners, federal judges might be the easiest one. As many know, the president gets to appoint federal judges. They are nominated by the president and ultimately confirmed by the U.S. senate. But that doesn't mean that the president gets to control the. What the Supreme Court does. That would be extraordinary and so contrary to any concept of separation of powers in our Constitution that. That I think it would be really laughed at if anyone suggested that President Trump could simply resolve the cases about his administration by writing a memo to Chief Justice Roberts and saying, hey, you should vote for me. And not only you should vote for me, but if you don't vote for me, then I will do X. I will fine you. Right? I will dock your pay, I will throw you in jail, I will remove you from office. None of those.

Okay, but is a judge allowed to make a pledge to a president?

Well, there's nothing stopping any kind of informal Pledge, Larry. In fact, we sort of have a word for this in the media. The media has started saying that there might be litmus tests for judges. Litmus tests is sort of another word for a pledge, right? How does everyone expect them to vote in a certain case or on a certain issue? So this is actually quite common to think about whether judges have litmus tests and whether presidents are using these litmus tests or sort of informal pledges from judges or Justices before they're appointed. But no one thinks, Larry, that presidents can then go enforce those pledges or say that you didn't pass the litmus test, therefore I get to redo this appointment. No one thinks that presidents have that power.

Let's be a little clearer though, about what this pledge could be. I mean, you're right, there are litmus tests. So you might say that a certain president would never appoint a Justice who. Whose writing suggested that he or she would vote against Roe versus Wade. That's completely common to imagine, certainly for Democratic presidential candidates.

But.

But a pledge is something more than that. A pledge would be the President sits down in interviewing the candidates and says, look, I need your word. I need to be confident that if I appoint you, you're not going to vote to overturn Roe versus Wade. Will you give me your word? Is that, is that unconstitutional for the President to say that?

No. The answer is no.

All right, so if the President says that and the judge says yes, I promise I will not overturn, I will not vote to overturn Roe vs Wade, why then if the judge is a Justice, if he or she gets confirmed by the Senate of the United States and then sits on the Supreme Court, why shouldn't that justice be subject to some kind of penalty if that justice then turns around and votes contrary to his or her pledge?

The answer is that no one has that power. The President has the power to appoint judges, but from there, judges have the authority to exercise the powers prescribed to them in the Constitution, which are under Article 3, which is deciding cases or controversies. And when they exercise that power, Larry, they are out from under the thumb of the executive branch of the President and indeed of the Congress. Right? There are lots of case laws saying this, that presidents can't just fire judges at will. There's another provision of the Constitution also giving them life tenure. But even aside from that, there are cases saying Congress and the President can't sign a law dictating the outcome of particular cases to judges. They can't hold judges to those promises. I think that's the really key point

okay, so if it' slet's go back to the electors case. So an elector is nominated. Somebody like Michael Baca is nominated. If the state says to Michael Baca, look, in order to be an elector or in order to be a candidate, to be an elector, you got to promise. You got to sign this pledge that says you promise to vote for the winner of the popular vote. Is that pledge allowed? Under our system, it is, Larry.

There's a case from 1952 called Ray against Blair. And in that case, the Supreme Court said clearly that pledges were appropriate for presidential electors to ensure that they would be loyal to the parties nominating them. But. And there's a very big but. The Supreme Court in that same case left open the possibility that enforcing that pledge would, quote, be violative of an assumed constitutional freedom, that the elector has to vote however they wish.

So that means the Supreme Court allowed them to make a pledge a condition of appointment. But the Supreme Court was completely clear that the condition of appointment didn't necessarily mean the ability to enforce the pledge that was the condition of appointment.

Bingo. Precisely.

So this pledge creates some kind of obligation, but you're saying the pledge is not an enforceable obligation.

Exactly.

Well, what kind of. I mean, that seems kind of crazy. Like, why is it a pledge if it's not enforceable? What's the meaning of it if it's just kind of words on paper?

Well, I think there is a serious meaning. Right. We know from history that 99% of presidential electors follow through with this pledge. And indeed, our presidential electors are no different. I think that in a normal election year, they all intended, at the time they became presidential electors to follow through on that pledge. It's a public promise. It's difficult to break promises. It's difficult to pledge publicly to do something and then go elsewhere with your actions. So they take it seriously. But I think, Larry, this is very common, legally and in our. In our own lives. Right? I mean, legally, no one would think that the promises of politicians are enforceable. And legally, again, more sort of in a more legalistic way. Jurors often make such pledges to follow the law. But when jurors go into the jury room to deliberate, they do have this additional freedom to choose to acquit someone that they just don't think is worthy of going to jail for whatever reason they wish.

So, wait, so if a jury is charged by a judge, the judge says, if you believe that the defendant did X, then you must find the defendant guilty. And the jury is told that they have to swear an oath to uphold the law. And they swear an oath, a pledge to follow the law. And then they go into the jury box and they say, ah, the law is stupid. We're not going to follow the law. We're going to vote to acquit. Are you saying that there's nothing that can happen to those jurors?

I'm saying that there's nothing that can happen to those jurors. And I'm also saying the Supreme Court has actually repeatedly recognized that power. It's called jury nullification in cases and in the literature. And it's a balance between this very serious obligation to follow the law and the fact that we want juries acting regularly, acting lawfully, but we also entrust them with a sacred power that ultimately is unreviewable. And I think something very similar is going on with presidential electors.

Okay, let's think a little bit more though, about this word electors. So it's kind of a weird word. We don't use that word much in modern life. Does the Constitution use that word elsewhere?

It does in one other place. The original Constitution uses it. And that is with respect to electors for House of Representatives, that is regular voters, because it's the regular voters, the people in we, the people that get to select who's going to the House of Representatives.

And who picks those electors?

Well, nobody picks those electors, Larry. They can be qualified by the state to vote. And as we know, that franchise has expanded greatly over the centuries. In the beginning, only often white landowners were qualified electors. Now there's a much broader set of the population. But the same word applies to these people who are average citizens who go to the polling place and get to cast a vote freely for whatever congressperson they want to. And now because the Constitution's been changed to let people vote directly for senators, those same electors get to vote for US Senators. A different kind of electors get to vote for president. But we think the same principles apply.

Okay, but so the constitution in Article 1 says that the states get to determine the qualifications of the people who get to vote for Congress indirectly, because it says that whoever is qualified to vote for the largest house of the state legislature is allowed to vote for Congressman. It doesn't say that directly like that, but that's the essential words. So that means that if they want to change the people who get to vote for Congress, they have to change the people who get to vote for the largest house in their state legislature. But the point is that this similar power exists with choosing electors who vote for congressmen. What Justice Thomas has called congressional electors and electors who vote for the president, presidential electors. The similarity is that the state, in both cases, gets to effectively define who gets to be an elector. But in the context of the congressional elector, what we typically call a voter, the question I guess, would be, does the state have any power to control how the voters can vote? Has the state ever tried to say you as a voter, have to vote this way?

Not that we know of, Larry. And even more important, the Supreme Court has said they couldn't do that. Why? Very simply, because the Constitution secures people the, quote, right to choose representatives by these electors.

All right, so the states get to set up the electors both for Congress and for the president. In the context of Congress, these are what we typically think of as voters. Are the states ever allowed to kind of tell voters how they have to vote?

Well, they have occasionally tried, Larry. There are circumstances we know of where political parties try and engender loyalty and indeed require loyalty by having voters swear oaths of loyalty to the party, even to vote for specific people. But what happens in the ballot box, I guess, to quote, to paraphrase a common advertising slogan, stays in the ballot box. Those oaths are not enforceable as a matter of what actually happens. You can make people promise, even if they're regular congressional electors, to be loyal party citizens, but you cannot actually make them vote for people that they do not want to vote for. That right to choose is core to what it means to be an elector.

Okay, so they have a moral obligation, perhaps, because they've made a pledge, but they have a legal freedom to vote however they want. Maybe practically, because how could we ever know? Although in the old days, you voted in public so we could know, but today, practically, how could you ever, ever know? But you're saying more fundamentally, because the very idea of being a voter or having the right to vote means having the right to choose freely without the constraint or the coercion of the state or other individuals. That's your argument?

Yes. And this comes from language from Supreme Court cases repeatedly about protecting this right of choice, which really is core to our democracy, as well as some language that's in the Constitution itself saying that there is a right of choice for President. In fact, when the election, as the Constitution says, devolves to the House of Representatives, they have a right of choice. Well, it follows naturally that presidential electors have that right of choice before it goes to the House. I think choice, if listeners come away with only one word, it is that electors are choosers. Electors have free Choice, despite what they might promise to do or what might be a moral obligation.

Okay, so the structure of this argument so far is, number one, historically we know that electors have exercised freedom, and Congress knew that at the time that they passed the last amendment that had anything to do with the Electoral College directly, which was the 12th amendment. So that's point one. Point two is the language of the Constitution also supports the idea of this freedom. It supports it, number one, by saying the power of the state is only the power to appoint. And the power to appoint does not, in many cases, include the power to control. Indeed, the only time it includes the power to control is where there's another power that expressly says you have the power to control. Like the President has the power to take care that the laws be faithfully executed. What we understand that to mean is that he gets to fire people who are executing the laws if they don't do it the way he thinks they ought to be doing it, so that. That the appointment power doesn't give the power to control. This part of the argument says the actual thing that the electors are electors given the power to, quote, vote by ballot, in the very nature of those words means they have a power to vote free of the control of anybody, because that's what voting in a free republic is. Is that. That's your argument.

Good summary.

So this all hangs, though, on us believing that in some sense the Supreme Court's going to say, wow, there is this extraordinary kind of immunity which is given to an elector by virtue of the elector being told that he or she today must, quote, vote by ballot for president and vice presidential candidate, a kind of immunity from state regulation. And I wonder, where do we see cases that actually articulate the immunity from control by the state when somebody is trying to perform what we might think of as this federal role?

Yeah. So there are a line of cases, Larry, talking about the immunity from state regulation of people exercises. You just said federal role. The term that the Supreme Court has used and that we use in our brief is federal function. And those most prominently come in the context of ratifying constitutional amendments. Let's go to the 18th Amendment, Larry, which you might imagine was quite controversial, that banned alcohol in the United States. So you can imagine many people wanted to exercise whatever power they could to see that that amendment was defeated. But the states ratified it, ultimately acting as the Constitution specifies, by action of state legislators exercising this federal function of ratification of a constitutional amendment. And so in a state where the people tried to override that legislative ratification, the Supreme Court in a case said, called Hawk said, no, you can't do that. Right. The people are not the ones who get to exercise this federal function. Instead, it is state legislatures, even though they're appointed by states and sorry, people of the state, you can't tell them how to do their job. This is a principle established.

So wait, so these officers, these state officers, legislators who in some sense are ultimately working for the people, the people are. The sovereign can't be told by the people in a referendum how they must vote on a federal constitutional amendment. How could that be?

Well, it can be, Larry, because the Constitution says that these state legislatures exercise this federal function of ratifying a constitutional amendment. That is their federal job. And it is immune from state control, even as you're saying, from the sovereign of the state. Even if the state constitution gives people the power of veto over certain legislative actions, which it does in some states, they do not have power of veto over this action because this federal function is committed to. To those people in the state legislature who get to vote up or down on whether or not to ratify the amendment. Right.

So Hawke was one case. Another great case is lesser, which is again about a federal constitutional amendment, the 19th amendment here, that was the amendment that empowered women to have the right to vote. And in that case, the claim was. This is lesser versus Garnett. The claim was that the state constitution forbid the state legislature from ratifying that amendment. And not just in that state, but the claim was in many states, the Constitution effectively forbid them from ratifying that amendment. And the Supreme Court said just exactly what you're saying here. The Supreme Court said that when they exercise the function, when the state legislature exercises the function of deciding whether to approve an amendment or reject it, that function is derived from the federal constitution and it transcends any limitations sought to be imposed by the people of a state. So at least in the context of people legislators exercising the federal function of ratifying a constitutional amendment, these cases are pretty clear that that function cannot be regulated by state law. Why do we think that electors are similar to these state legislators ratifying a constitutional amendment?

That one's actually pretty simple, Larry. The Supreme Court has dealt with cases involving presidential electors. Most recently a case that some people may have heard of called Bush v. Gore that decided the 2000 election. And in those cases and cases going back to the 19th century, the Supreme Court has made clear that presidential electors, when they exercise that crucial discretion to vote that we're talking about, exercise what the supreme court has since 1892 in a case called Burroughs Said is a, quote, federal function. It reused that word again, that phrase again in 1952 in Ray against Blair, and it used that phrase once again in 2000. And, Larry, I think, you know, I hope that the court agrees with us here. I don't think that there's really much room for disagreement on that point at all.

So it's clear they're exercising a federal function. In a federalist system like the United States, when a person is exercising a federal function, that person is immune from state control, at least with respect to the core of that federal function. So, you know, they might have to still drive the speed limit, speed limit imposed by the state, but with respect to the particular function they're exercising, they can't be overridden by state law. There's a very important case that establishes this principle, maybe one of the two most famous cases that I teach in the context of constitutional law. And I know you were a great student of constitutional law, Jason, but So you'll remember McCulloch. How does McCulloch fit in this analysis?

Well, this is one of your favorite cases, as you know, Larry, so I'm reticent to take it away from you. But the summary here is that this is in the early Republic when the federal government is first exercising its power to. To have a national bank, the bank of the United States. And there is a state that, as Maryland is trying to impose a tax on it, is trying to regulate it and burden it. And the Supreme Court, in one of the early and robust exercises of power that is committed to the federal government and cannot be interfered with, the state basically says, no, you cannot impose that burden. You cannot impose that tax. It is a fact federal function that the teller, James W. McCulloch, is performing, and that function is immune from state tax and state control. And that's exactly what we think is happening here, right?

Because McCulloch, this cashier, was actually directly taxed by the state. The state basically said, you issued these papers without the proper stamp on them. And by proper stamp, they meant under state law, in order to issue these notes, they had to be on paper that had been stamped by the state of Maryland. So because you did this, you're liable for this tax. And so they were trying to fine McCulloch directly. And what the Supreme Court said is, you can't fine McCulloch because you don't like the way McCulloch is doing his job. And that's basically the same issue that's at stake in the Washington case, right? Because in the Washington case our clients did their job in a particular way. The state of Washington said, we didn't like the way you did your job. We wanted you to vote for Hillary Clinton. You didn't vote for Hillary Clinton. You voted for Colin Powell for president and then a bunch of other people for vice president. So because we didn't like the way you did your job as a federal elector, we're going to fine you. And they fined them $1,000 each, which, as we'll hear when we talk to them, is not small change for at least some of our electors. So the point is, the analogy is pretty direct. The Supreme Court says when you're performing a federal function, you're at least free from being penalized by the state. And these electors are performing federal functions, so the state shouldn't have the power to tax them or they shouldn't have the power to penalize them by throwing them out of the electoral college. So these are the three legs of the stool.

Right.

We've got text which says, states powers to appoint. And that doesn't extend beyond appointment. And the thing that's being appointed is an elector. And an elector exercising the power to vote has got to have a freedom to choose how they're going to vote. Text structure. These electors are performing a federal function, and because they're performing a federal function, they are immune from control by the states. And history. From the very beginning of the republic, electors have exercised their federal function in ways that the appointing entity, state legislatures did not expect. And never in that history have the electors been stopped in that part. Actually, we haven't filled this part out. But this is really critical. Right. Have there been other electors beyond Sam miles or the 1796 election who have cast their votes contrary to how they were either pledged or expected to vote?

Oh, yes. Yes, there have. There have been over 180. And the short version of just summarizing what happened to them is nothing. Congress counted all of those votes. It one time debated whether or not it should do so. That was in 1969. And Congress said, you know, yeah, there may be a moral obligation. This thing we've talked a lot about, Larry, a moral obligation, a duty, even something that is really sacred and important in our country. But it is not something that Congress wanted to disturb, and it is not something in our view, that states can disturb.

Okay? So we've had this long history where electors have exercised the freedom that Sam Miles exercised every single time. That happened until 2016. Congress has recognized the freedom of those electors to vote contrary to their 2016 is the first time in history that a state has ever tried to punish an elector by fining them for voting contrary to their pledge or by removing them, as they did with our client, and also in two other states across the country. And so this makes 2016 unique against the background of this history. And so those are the three legs to our stool that stand together to say the Constitution gives the electors the freedom to vote. Okay, so, but here's the kind of final frame that I think actually is where most people start, and it's hard for most people to move away from it. Okay, fine. The Constitution 220 some years ago created this weird entity called electors who had this weird discretion, which most of the time they never exercised. But, okay, when they did exercise that discretion, Congress didn't get care much to resist it, because it didn't matter ultimately, at least with presidential elections. But there's clearly a convention that has evolved an expectation that all an elector is going to do is look at the results and vote the way the people voted. And why shouldn't we see that convention that has evolved over these many years as basically creating a new kind of common law, a new kind of obligation that the states can make real by passing laws that, say, live up to the obligation we all expect that you have, despite the fact that it's different from what the framers would have done. Has the Court ever looked at the consequence of a kind of evolving convention and said, well, the convention's interesting, but it just doesn't matter?

The important word that you said, Larry, is convention. You also use the word custom. And there's a big difference between what the country does as a matter of custom and convention and what the Constitution requires and authorizes. And the Supreme Court, whenever it's faced this dilemma, has repeatedly said, and I'm quoting here from a case about presidential electors in the 19th century called McPherson against Blacker, that the prescription of the written law cannot be overthrown because the states have exercised in a particular way a power which they might have exercised in some other way. And so what I think the Court is getting at there, indeed, what I know the Court is getting at there, is that custom is an important part of constitutional law. Indeed, Larry, you teach constitutional law, and as I'm sure you teach, I didn't get a chance to take your class. There's so much built on the Constitution that is not in there. But when there is a conflict between a custom that has arisen as a matter of custom, and then someone tries to go beyond that and write it into law, even though the Constitution specifically does not allow it. Larry, it's the Constitution that wins and not the custom that wins.

Yeah. The blacker case for me, as you know, because we've talked about this a lot, is increasingly the most compelling case to understanding what the Supreme Court, at least historically, has done in this case, this kind of case. Because in the blacker case, it's a kind of weird case that comes out of Michigan, where for the whole of the 19th century, the convention had evolved so that rather than states doing all sorts of different things like they did at the Founding, where some state legislatures picked the electors directly, others had districts that counted votes for electors, others had winner take all elections at the state level, basically every state had evolved a convention of deciding who the electors will be based on the popular vote and the winner of the popular vote. So basically every state adopted winner take all by the end of the 19th century. And winner take all meant that if you got one more vote than your opponent in the state, you got all of the electoral college votes in that state. Now, footnote, we're also trying to push litigation that challenges that whole idea. And we might get a chance to talk about that in another podcast. But that was the convention that had evolved by the end of the 19th century. Michigan, for really interesting political reasons, decided to change that. Michigan decided to allocate their electors by district. So they wanted to say each district, each congressional district basically got to vote for the president, and the winner in each congressional district would get an elector. And when that was challenged, the basic thrust of the challenge, it was really hard to articulate a constitutional problem with that. But the basic thrust, thrust of the challenge was, hey, that's not the custom. Every state in the country does winner take all. So Michigan can't go back to the old ways. They did it. Michigan needs to follow the custom. And the custom is winner take all. So this new system, which copied the old system for many states of allocating electors on a district by district basis is the argument was unconstitutional. And what the Supreme Court said was, yeah, there's this new convention. Lots of all the states are following it. But the Constitution gives the states the power to decide what they're going to do. And even if the states have not exercised that power a lot in any interestingly different ways for over 80 years, it's not the fact that they've lost the power, they still have that power. So if they have the power to go back to the district system, that's what they should be able to do. And there's no constitutional problem with that so long as other principles in the constitution, like the 14th amendment, are not implicated. That's basically the claim that goes on in this case. Nobody doubts that at the framing, electors had a certain power, the power to exercise discretion. Nobody doubts that the Convention has evolved so that electors basically follow what the people do when the people vote. So nobody should doubt that the expectation is electors are going to vote the way the people vote. But what happened in this case is that certain electors, our clients, for really good faith reasons, as we'll explore in the next episode of this podcast, cast their votes contrary to how they were pledged. The question the court should ask is the same question it asked in Blacker. The custom's very interesting, but does the custom change the Constitution? And what the Supreme Court Justice Jackson said in the famous case of Ray v. Blair that we've talked about a bunch where the Supreme Court says, yeah, you can get electors to pledge. Jackson in dissent says, quote, if custom were sufficient authority for amendment of the Constitution by decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to the constitutional generalities, such as due process of law, equal protection, or commerce among the states. But I do not think powers or discretions granted to federal officials by the federal Constitution can be forfeited by the court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions. And that's basically the thrust of the argument in our case. The only sanction that is allowed for the electors not following the custom, not following their pledge, is that they can be criticized, they can be called to account. Afterwards, people can say, what? By what right did you do what you did? And it's going to be difficult for them to justify themselves in many cases. In many cases it wouldn't be difficult. But the point is that is their freedom by being selected as electors. And these electors, as part of our constitutional tradition, should be guaranteed the freedom that the framers of our Constitution gave them and that no amendment to the Constitution should has taken away. Is that our closing argument, Jason?

So let's add one more point, Larry, because I think many listeners might be surprised to hear an argument that is saying that the Constitution, the text of the Constitution, prevails over something like custom. But I want, at the risk of, you know, stating a constitutional view to a constitutional law professor, I want to explain why this kind of interpretation of the Constitution is very different from another area of constitutional interpretation, where what folks are trying to do is interpret the Modern meaning of broad and open ended phrases. People will understand that the Court has given evolving interpretations to phrases like cruel and unusual punishment, what equal protection of the laws means, what due process of law means, what unreasonable searches and seizures are right. These are broad phrases that are ambiguous in the Constitution that I think you and I, Larry, share a view that the Supreme Court should think about how our society evolves and what that means in terms of constitutional protections. This, though, is very different and I want to make sure listeners understand why it's very different because this is not having to do with the interpretation of a particularly general phrase, having to do with rights that exist for, you know, in changing ways. This has to do with the structural part of the Constitution and the custom that has been built on top of that structure. And our view, Larry, is that these structural parts of the Constitution, the bones, the words, are really the most important thing and they prevail, as we've said, over any kind of custom that goes beyond the powers that are specifically given by the Constitution. I don't know, I don't want to put words in your mouth, Larry, about your theory of constitutional interpretation, but does that make sense?

Yeah, it does. I mean, I literally just published a book last year called Fidelity and Constraint, which talks about an incredibly important practice that I think the Supreme Court has adopted in both cases thought of as right wing cases and cases thought of as left wing cases. And that practice is a practice I call translation, where the Court is basically trying to translate what the Framers were trying to do into modern circumstances and trying to make the meaning of the Constitution equivalent between those two circumstances. So the clearest case on the left, for example, is about whether wiretapping violates the fourth Amendment because the Fourth Amendment originally was targeting trespassing on somebody else's property. And when you wiretap, as the government argued in the very first wiretapping cases where they made this claim, when you wiretap, you don't necessarily trespass. So if you don't necessarily trespass, then should the fourth Amendment, which protects against unreasonable searches and seizures, even govern wiretapping? And originally the Court said no, it doesn't, because it's not trespassing. But eventually the Court did what I call translate the original protections into a new context to give them an equivalent meaning in that new context. So I think that happens on the left, it happens on the right. The so called federalism cases are often that. But in all of those contexts, what's happening is the Court is trying to find an equivalent to the original Structure in the modern circumstance. In this case, the original structure is the same as the structure we've got now. There's nothing that would change the nature of an electoral so that we imagine the states have the power to regulate electors for the President or electors for the legislature instead, the electors here are in some sense a natural kind of power that is not subject to this type of change. I do think it's important to say that the text, structure and history of this question as applied to electors yields an answer very much like the original answer. Doesn't mean that in every area of the Constitution the same kind of analysis is going to apply Again, as Justice Jackson said in the part that I just quoted, usage may sometimes impart changed content to constitutional generalities, such as due process of law, equal protection, or commerce among the states. So he too is recognizing there are places where change circumstances change the constitutional meaning so that they, or at least the way the Constitution's applied to take account of these new circumstances. But not always. And indeed this Supreme Court, not just the conservatives, but also the not so conservatives, also the liberals, have been willing to say that when the Constitution is clear on the text, structure and history, they're going to interpret what the Constitution means, even if it is surprising to modern ears. So the most surprising in Bush vs Gore, we've talked about the history of how legislatures originally picked the electors directly. And we would find that completely crazy to imagine a legislature today picking the electors directly because we kind of expect that the election will be something we all participate in, and then the electors will follow the results of that election. But in 2000, in Bush vs Gore, the Supreme Court said not only was that the original power of legislatures, that power survives to this day. So in Bush versus Gore, they said the state legislature has the power to recall their decision, to allow the voters to vote, and to actually decide that they will cast the electors in a way contrary to how the voters will vote. So that's the Supreme Court signaling pretty clearly that what we expect the Constitution is, what we've come to understand the Constitution to be, is not necessarily how the Court will understand the Constitution. And that, in my own view, is often a very good thing, because we shouldn't leave the Constitution to a bunch of judges. And when the judges determine that the Constitution is different from how we expect it to be, that's a call to us to make the Constitution into the document, into the law that we want it to be. So if it turns out the Constitution as interpreted by the Supreme Court gives electors the power that we believe electors have. That's going to be a question for all of us. Do we want this to be our Constitution? And in the third of these episodes around these cases, we're going to talk about that question and what a possible response to it could be. But that response is different from what is the Constitution today? And I'm pretty confident that when the court gets around to this, the court's going to agree with us that the Constitution today is, as the constitution was in 17, 1887 and in 1804, a constitution that allows the states to select electors, but gives those electors an important constitutional freedom to vote as they think proper. Okay, we've gone on way longer than we usually do, but it's an important case for us. Whether it's important to the world, we'll see. I'm grateful, Jason, for you helping us untangle some of the issues here and really eager to continue this conversation with our clients. Thank you, Jason.

Me too. Thanks, Larry.

So that's the end of this episode of the podcast Another Way. Stay tuned for the next episode or somewhere down the line of these episodes. We've got a bunch coming in. I'm not sure of the timing right now. That will be an interview with our clients who actually were the troublemakers who got these cases going. You can find our podcast on the webpage equal citizens us anotherway, or at any one of the 10 million places that people subscribe to podcasts. Please go to our page, though, Equal Citizens US Anotherway to give us feedback or ideas or responses to what we've said. And I'm eager to continue the conversation, especially triggered by the feedback that we get from the work that we're doing. Thank you again for tuning in and stay tuned for what follows.