The Supreme Court Arguments About Presidential Electors: Part 1

This is Larry Lessig. It's been a week and a day since the arguments in the Supreme Court in our Electoral College cases. These were the cases addressing the question, what is an elector? What power does he or she have? Or what discretion does he or she have? We took these cases almost four years ago, three and a half years ago, I guess, to defend electors who had exercised their discretion in the 2016 election to vote for someone other than the person to whom they were pledged. They did that not because they were trying to flip the election for the loser. They did that because 2016 was an extraordinary election where the winner of the popular vote by more than 3 million votes was not going to be selected as president by the Electoral College. And the electors in both of our cases, in the cases in Washington and the case in Colorado, were electors who were trying to work with Republicans to pick a candidate who would then send the decision to the House of Representatives so that the House of Representatives could choose whether to confirm the original result, which would be that Donald Trump was selected president, or to choose a Republican other than Donald Trump, who might be a more moderate or bridge building Republican for America. Now, you can think about the plan as crazy. You can think about it as unlikely, though, as the work of rather Robert Alexander shows. In 2016, 20% of Republican electors were considering whether they should vote for someone other than the candidate to whom they were pledged. But whether you like the plan or not, whether you think it was justified or not, it raised the core question about electors. Are electors free to exercise their discretion and to exercise their discretion in a way that might bring a result different from the result that was otherwise expected? In these arguments, you'll hear the Supreme Court struggling with that question. And they're struggling with that question because we came into the Court with a context set by a set of extreme arguments made in an amicus brief by the campaign legal center and issue one confirmed by writing in the public domain by scholars such as Rick Hazen, that created this atmosphere of, quote, chaos that would have been produced if the court ruled in our favor. Chaos. And the basic idea of chaos is, is that if electors are free to vote their conscience, then it's likely or at least reasonably possible that electors could flip sides and take a result that was intended for one candidate and turn it into a choice of the opposite candidate. And the concern was that if the electors were held to have a constitutional discretion, then the electors could conceivably flip a result. They could take a result that was for one candidate, and then if enough of Them voted for the other candidate, they could produce a result that would shock the nation. And the struggle for the Court was whether they should allow that system to govern the system for electing our president. It was a bizarre experience to have to fight against this contextual fear in the course of defending the legal arguments that we had made about what the Constitution actually requires, because these fears were themselves extremely tenuous and amorphous as a target in a context where, as you'll hear, answers to questions are no more than a minute long. The Chief justice had embraced a very strict rule for enforcing the limit on arguments, a limit which historically has been much more flexible in particular cases appropriate to the importance of the case, especially, especially cases involving constitutional law. But this Chief justice believes it's very important to make sure the argument does not stray far beyond the limits set by the Court. And therefore you hear the Chief justice repeatedly cutting off answers to questions to assure that the total time for the argument is not exceeded. I'll let the argument speak for itself. I just want to offer a couple minutes about how to think about this fear of chaos. And I may be offering this not so much for you, but for me, because I didn't have a chance to offer this kind of response in the context of that argument. And it of course, has weighed on me heavily every single moment since that argument. I wrote about the argument on my medium page. You can see the entry Morning After Thoughts that lays this out a bit. But let me try in a more concise way. The fear of chaos is the fear that an election will be flipped by electors either because they've been bribed or because they just decide that they like the other candidate better. It's first important to realize how electors have actually done their job. Over history. There have been 23,507 electors in the history of America. There has been exactly zero electors who have ever been bribed. Zero. And there have been exactly one elector, the very first who's named a so called faithless elector who has ever voted for the candidate on the other side in a context where it could matter. Sam Miles in 1796 changed his vote from the presumptive vote for John Adams, the candidate for whom he was selected as an elector to Thomas Jefferson. And the reason he did it is a reason that I think everyone would defend today. He was selected as an elector before the votes in Pennsylvania were actually tallied. And when the votes were tallied, everyone realized that he should not have been selected as an elector. The elector should have been the elector for Thomas Jefferson. So he flipped his vote for Thomas Jefferson so that Jefferson's popular support would be reflected in the electoral college. Now that didn't flip the result. John Adams still won in 1796. But that is the only time in the 220 some year history of America of presidential elections, of the 58 presidential elections, when an elector has has switched his or her vote in a way that could have mattered. Every other time has been of one, in one of three types of cases. The one kind of case is when a candidate dies. Two thirds of the so called faithless electors, 63 out of the 90 have switched because their candidate died. And as we know from that election in 1872, that's what they are supposed to do, because if they don't switch sides, then the elector will vote in a way that will waste the vote of the state. Because in that election, though 63 electors switched sides. The three electors who didn't had their votes lost because Congress refused to count the votes for a dead candidate. So the biggest category of so called faithless electors are electors who are responding to a completely foreseeable contingency, the death of a candidate. The second biggest category are electors who vote for someone else as a kind of political statement. But they have never exercised that power in a context where it could matter. So the elector who triggered the law, that was an issue in Washington. Mike Padden in 1977 switched his vote from Gerald Ford, the candidate to whom he was pledged, to Ronald Reagan. He actually cast his vote, obviously in 1976. Congress counted it in 1977, but he switched his vote because he was expressing the idea that Ronald Reagan was actually the future of the Republican Party. And of course, that switch didn't matter to the ultimate result. It risked nothing because the margin was so great that it wouldn't have affected anything. That's the same thing that happened in 2016, when two electors, one in Maine and one in Minnesota, voted for Bernie Sanders rather than Hillary Clinton because they wanted to express Sanders as the future of the Democratic Party. Again, in that case, because Hillary Clinton had already lost, that switch would not have mattered to the ultimate result. And then the third category of cases is really the category of cases represented by 2016 cases where electors are switching sides because they're trying to bring about a result that is different. They of course failed. They needed to get 37 Republicans to vote for someone other than Donald Trump. Only two did. But that objective was an objective they felt was motivated, properly motivated by the contingency of the election. But as we went into this argument, the issue for the court was whether their decision would increase the risk of this extraordinary result. And if you think about the numbers, which of course is hard in the context of a legal argument, it's pretty clear why there's absolutely no increase in the risk that they should fear from their decision making elections even more insecure. And that's easy to think in both scenarios, either the bribery scenario or the politically motivated flipping scenario. So let's take bribery first. If Colorado and Washington win, then there will be 84 electoral votes that are automatically guaranteed for the winner of the popular vote and cannot be switched to anyone else. Those 84 electoral votes from Colorado and Washington and other states, seven other states that have these kind of automatic mechanisms for registering a vote are distinct from, from the 454 electoral votes that are not cast automatically under the law as it is. So if the Supreme Court rules against us, then the total number of potentially bribable votes is 454. If the Supreme Court rules with us, then the total number of potentially bribable votes is 538. Now, it's hard to see how leaving 454 potentially bribable votes on the table reduces the chance of bribery actually occurring. Because of course, yes, if someone wants to bribe electors to flip the results, they can't go to Washington or Colorado anymore. But there are plenty other electors out there who they could turn to. And the point then is the Supreme Court's decision wouldn't change that probability. The same thing with the question of just electors flipping sides. Yes, there are a number of states and in our initial brief we map out all of those states and we have a website linked in the original brief that has the laws of all of the states that will restrict the freedom of electors to vote one way or another. But the reality is there is still a significant number, a huge number of electors who are not bound by that rule at all. Indeed, think about Texas in 2016. Two electors pledged to Donald Trump voted for someone other than Donald Trump. They didn't violate any obligation when they did that because Texas didn't impose obligations on electors to do that. So if we win, then there are every single elector who is technically legally free to flip sides if they so choose. If we lose, then there is still a huge number of electors who are free to choose flip sides if they so choose. So again, the decision in this case wouldn't change the probability of so called chaos. Okay, but then two final thoughts. First about bribery, second, about these so called flipping or Unfaithful electors. First, about bribery. It's kind of astonishing that people even think about that question. And what does it say about where we are in American politics that that's now a question? Of course, again, never in the history of the 23,507 electoral votes has anyone been bribed. Even when it was extremely close. In the 1876 election, there was one electoral vote that determined the winner, one electoral vote. And in more recent election, the handful of electors, four or five depending on how we imagine the final vote, would have been cast in the District of Columbia, a small number of electors flipping sides could conceivably have changed the result. A vast majority of those electors could technically have been bribed because there were not laws that would have automatically forced the electoral vote to one candidate or another. And we know that those electors were approached and lobbied heavily by an online campaign and by professional lobbyists to switch votes. And yet none did and none were bribed. So it's astonishing that despite the fact that we have a history of couple hundred years in America where there are no bribed electors, this is the issue people are thinking about, what does it say about us? And then the second thing about so called electors flipping sides. What was frustrating and kind of bizarre about the way this case developed is that this concept of, as Washington put it in their brief quote, unfettered discretion in electors, confused how people thought about electors. I mean, think about a member of Congress. So think about Ted Cruz, Senator from Texas. Does Ted Cruz have unfettered discretion as a member of the United States Senate? Well, I mean, he has total legal discretion. Ted Cruz could walk into the United States Senate tomorrow and say, Mr. President, I've decided that I'm actually a Democrat. I've decided that I would like to vote with the Democratic Caucus. I've decided that I no longer believe in the ideals of the Republican Party. I no longer believe in the ideals of those who voted for me from Texas. I've decided that I am now a liberal Democrat and I will do as a liberal Democrat would do. Ted Cruz is totally free to say that tomorrow he has an absolute constitutional discretion. And if he said that there is nothing that Texas could do, Texas couldn't fire him, Texas couldn't recall him, Texas couldn't fine him, and there's nothing the United States Senate could do. The United States Senate couldn't say, we're going to expel you because you've declared yourself to be a Democrat. Ted Cruz has a completely, absolutely, constitutionally protected discretion to vote as he wishes, but that's not an unfettered discretion. Obviously, if Ted Cruz flips sides and declares himself to be a Democrat, Ted Cruz is not going to be reelected again. If he declares himself to be a Democrat, all of his buddies are going to say, hey, what the hell, Ted Cruz, how could you do that? You've betrayed us. Ted Cruz lives under an extraordinarily strict set of obligations imposed upon him by party and by his own morality. He held himself out as a Republican. He will behave as a Republican or pay the price. That's the public price. What about the private price? Ted Cruz himself would pay the price. He would know himself to be dishonest. And that too would be a constraint. So the point is, when we talk about discretion, we're not imagining appointing some random person from the street and then saying to them, so who do you think should be President? No, the electors that are chosen to be electors. All of them are chosen because they are the most loyal of the most loyal. So if you imagine the Electoral College in which every single Democrat is a clone of the chairperson of the Democratic Party and every single Republican is a clone of the chairperson of the Republican Party, then ask yourself, what does it mean to say that that college filled with those electors has a constitutional discretion? What it means is there's not much chance that anybody is ever going to vote for a candidate other than a candidate from their party. Practically impossible to imagine. And yet, if in fact that happened, it would say something extraordinary because it would say something was needed. It would say that something had justified the flip that had been manifested. And then finally, just let's be clear about the magnitude of the flip. We're confused, I think, because we look at elections and we think about the extraordinary event of 2000, where again, a handful of electors would have determined the result. But 2000 was an extraordinary aberration. In the history of America, there have been three elections decided by the Electoral College in which the difference between the winner and the loser was 10 electors or less. 1796, which the first so called faithless electors switched sides, where John Adams won by three electoral votes. 1876, where after an extraordinary struggle to determine which slates of electors would be counted, hayes won by one electoral vote. And 2000, where despite winning the popular vote, Al Gore lost the Electoral College vote by a handful of electors. Every other so called close election is at least two dozen of electors apart or three dozen electors apart, as was 2016. So the question is never to imagine a handful of electors flipping sides. That's almost Never happened. Instead, the case to imagine is a case where dozens of electors decide to flip sides. Dozens. In 2016, 37 electors would have had to change their mind to produce a result other than what in fact happened. That requirement of that number of electors making a decision contrary to how they were originally expected to vote not only says that the chances are almost infinitesimal, but it also says that if it happened, there would have been a reason. So the question the Court will decide probably within the next six weeks is whether this system set up by the Framers, will continue. Because in a certain sense, if you take the chaos and remove it from the room, this is a pretty easy case. For the originalists on the Supreme Court, the answer to the question, do electors have a constitutional discretion? Is absolutely clear, because there is no doubt that the framers of the Constitution intended to build a machine, the electoral College, that would give electors that discretion. That's not how the machine has been used over time. Over time, the machine has been used to basically simply reflect the party choice in the state. But whether it's been used for that purpose or not, that's what it was built for. And we cite in our brief a website where we put together a list of close to 100 separate sources where people looking in that history had concluded that that was the Framer's intent, so that history is absolutely clear about what the original structure was meant to be. And for an originalist, that means the answer to this case should be easy. For a textualist, the answer to this case should be easy as well. You'll hear in the argument Justice Kagan asking me whether the words elector or vote necessarily mean that someone has discretion. And she says, you know, a Soviet vote doesn't entail that anybody has discretion. And she's absolutely right about that. She's absolutely right about that. We've never argued that the words of necessity mean discretion, but we have argued that the words interpreted the way the Supreme Court interprets the word words of the Constitution mean discretion. Because the word elector appears in other places in our Constitution, and the word vote appears in other places in our Constitution. And in every context in which those words appear, what they plainly mean, and the Court has held them to mean, is a discretion, a constitutional discretion that cannot be regulated by law. So either the originalist or the textualist should find this case to be a simple case. But it won't be a simple case because the Court is skittish and anxious about the message it sends. Hundreds of years ago, I served as a clerk at the Supreme Court. I worked for Justice Scalia. I was his token liberal clerk. It was an extraordinary experience. And Scalia, of course, as anyone can tell by reading his opinions, had his hand in every word that came out of that. But his clerks would draft their opinions, and he would then work for days to rework the drafts, to make them in his own language. But if I were a clerk and assigned this case, and assigned the case with the results that the constitutional freedom that the Framers intended needed still to be protected, I would have insisted that somewhere in that brief, there would have been a message to the electors. And that message would have gone something like this. Electors in the history of the United States have served a critical and important role, and they have served that role well. There's no evidence of bribery. There's no evidence they've ever been coerced. There's no evidence they've been paid beyond a de minimis amount to cover their expenses. They've been what they were intended to be, an important check, a safety valve, a human safety valve, in the middle of the process for selecting the President. But by recognizing a constitutional discretion, no one should be confused about what that discretion means. It is not the role of an elector to reflect from first principles about who the President of the United States should be. An elector has a moral and political obligation to reflect the results of the election in his or her state. And the job of the elector is to make that reflection clear. The job is not to second guess. The job is not to relitigate. The job is not to ask the question whether you would make the decision that the people in your state made. The job of the electoral is to do as the parties expect you will do, to reflect the results in your state. But when the extraordinary happens, when a candidate has died, when he or she has been disabled, when it's an obvious tie that will lead to a decision in the House, which might be a decision between just the two candidates who had produced the tie. Or maybe like in 2016, when it has been an election where the clear winner of the popular vote has not won in the Electoral College. In those cases, the Constitution reserves to you electors a discretion to decide what should happen. That discretion is extraordinarily important because how you exercise it will affect the peace and stability of the nation. Historically, you have always exercised this discretion appropriately. You need to exercise this discretion appropriately in the future, too, at least until the time that the people, through Article 5 and the process for amending the Constitution, change the Constitution and remove from you the electors, a constitutional Freedom to exercise your discretion in casting your vote for President. That amendment may well be supported by by a clear majority of Americans from both parties. Indeed, the vast majority of Americans are troubled by the way the Electoral College works. But the question in a Supreme Court case is not what the Constitution should be. The question is what it is. What we did in bringing this case was to try to tee up that question, to make it clear so that the democratic process could then decide whether the Constitution as it is, is the Constitution that should be. If the Supreme Court rules with us, that democratic project will be easier and clearer and people will decide whether they like the system as it is or they want a different system. If the Supreme Court rules against us, that democratic project will be harder. Because this so called danger of chaos will at least apparently have been minimized or removed by the Supreme Court. By the Supreme Court. As a former Scalia clerk, that's such a hard statement to make by the Supreme Court. You know, if the Supreme Court had discovered in 2020 that the framers never thought about bribery, if they discovered that this was just a kind of oversight, like a mistake, a drafting error. Oh, those just those framers, they just didn't think that by giving electors a discretion, they would be exposing the nation to the risk of bribery. If they hadn't thought about it, then maybe you could understand the justification for a court rewriting the document that we have as our Constitution. But they didn't overlook it. They didn't forget about it. They didn't ignore the potential. They expressly considered it. George Mason argued against the idea of electors. Why? Because he feared they would be bribed. He was wrong. They've never been bribed. But they thought about bribery. They thought about it and they saw the risk of bribery and they saw the risk of a corrupted presidency too dependent on the power of the states, and they chose the lesser risk. The lesser risk was electors. Electors are human beings who exercise in our tradition, not the Soviet tradition, but our tradition, a discretion. That's what our Constitution means. We'll see if the Supreme Court allows our Constitution to be as it means. Okay, that's a long introduction. Longer than the argument, I'm sure. I'm so grateful you allow me to express this, because as you'll read, if you read my medium piece, I'm the sort of person who just can't let it go. I literally never, never give a lecture without waking up the next morning and thinking, oh my gosh, I should have done this differently or that differently. It's a weird weakness for someone who spends so much time speaking everywhere, hundreds, hundreds of lectures. Never am I free of this self doubt or self criticism. And of course never is that doubt greater than it is in the context of something as important as an argument before the Supreme Court. But I'm going to discipline myself and and from here on, from this moment on, from these words here, until the decision has made, I will let it go. And if the laws of copyright were not so strict in the background now, you'd hear the song that my children have played so often as they've listened to that music from Frozen. But you'll just have to imagine it here. Thanks for listening. Enjoy the argument. It was a blast, however tormenting it will forever be. This is Larry Lessig.

We will hear argument first this morning in case 19465 Chiafalo and others versus the state of Washington. Mr. Lessig.

Mr. Chief justice, may it please this court. The question in these cases is straightforward. Do the states have the power to control through law how an elector may vote? They do not. The ordinary expected meaning of the words of the Constitution against the background of the framers deliberation, make it clear that the states have no such power. But what is also clear is that Washington does not like the Constitution's design. It asks this court to read the word elector as agent, or maybe better minion. And it declares that the votes electors cast are not, as the Constitution expressly describes them, their votes, meaning the electors votes. But instead of the votes of the state, Article 2 in Washington's hands effectively gives the states the power to cast votes for President in such manner as the legislature thereof may direct. But the actual Article 2 does not give the states the power to cast votes. It gives the states the power to appoint electors. And the actual electors that the Constitution creates have a legal discretion as every elector does not an unfit fettered discretion, as Washington puts it to the contrary, a completely fettered discretion, just fettered by moral and political obligations, not by legal constraint. Washington's alternative to, quote, vest discretion in citizens rather than electors may be a better plan, at least if part of a coherent change. But the question for this court is not which plan would be better. The question is which plan is the Constitution's now? And the answer to that question is clear in the Constitution's text. The states get to a point, no doubt, but they appoint electors who are then privileged to cast their votes without regulation by the state.

Mr. Lessig, do you object to the pledge itself? Assume there's no fine or any other sanction is simply Requiring a prospective elector to take a pledge.

Okay.

In your view?

Absolutely. Your Honor, a pledge understood the way Ray understood a pledge having no legal obligation. But a moral obligation is perfectly fine as part of the appointment power of the state.

Well, then.

So the addition of a sanction makes no difference now?

The sanction makes all the difference. So long as there is not a legal sanction, then a pledge is appropriate. It's the same in the context, your Honor, of the Speech and Debate clause. Of course, you can't punish somebody for a vote in Congress, but there's nothing inconsistent with a speech and debate clause. And asking a member to make a pledge, indeed, states right now ask members to make a pledge as a condition of being a party.

So if there were a fine of $1, you would say that violates the Constitution. But if it's simply a pledge, no violation at all.

That's right. Because a fine is a legal obligation, it crosses the line because the state has no such power to impose such an obligation through law.

So your argument is not that the sanction must have coercive effect. It's simply simply a. If it's only a symbolic requirement, it still violates the law.

No, you, Honor, it's symbolic requirement. It's, of course, an important moral requirement. It's a moral obligation when you take a pledge. But it can't cross the line and become a legally coercive obligation consistent with the freedom that the Constitution grants electors to vote by ballot.

So by legally coercive, you mean something different than simply coercive. In other words, if you add $1, that becomes legally coercive? That's right.

Just as with the Speech and Debate clause, if you fine a congressperson $1 for his speech or his vote on the floor of Congress, that violates the Speech and Debate clause. But there's no problem with saying to that congressperson, to be a member of the Republican Party, you must pledge to support the platform of the Republican Party.

Under your view, there would be no way to enforce the popular vote referendum.

The National Popular Vote compact. Is that what you mean? Your Honor?

Right. I mean, assuming that gathers enough support and becomes law, there'd be no way to enforce it.

Well, your Honor, that obligation requires the states to pick a select plate of electors that fits with the winner of the National Popular vote. And that slate of electors then would have the same discretion, legal discretion, that we believe any elector has. But of course, if there's a National Popular Vote compact, the number of electors for the winner would be so significant, it would be Very hard to imagine any discretion affecting the ultimate result.

Thank you, counsel. Justice Thomas thank you, Chief Justice.

Mr. Lessig, just a preliminary question. Should we ask ourselves whether or not the state is granted the authority to regulate the vote of the elector, or should we ask ourselves whether the Constitution prohibits the state?

Your honor, I think you can ask the question both ways. And it's the same answer both ways. The only argument the state has made in Washington in the Washington case is an argument grounded in the appointment clause. They don't invoke the 10th Amendment, so that would. The question is whether the appointment clause gives them power to control, and we believe they do not. But then you can look at it from the other side and ask as an elector who is given an obligation to vote by ballot, does that obligation entail a protection from legal regulation? And we believe just as the speech and debate clause does, it creates an immunity from being punished for how one votes.

So when you make your, I'm curious, when you make your federal function argument, does that depend in part on the fact, on your view, that the elector has discretion?

The federal function establishes the discretion, your honor. It's exactly the same as in the cases of Hawke and Lesser, where the question was a state legislature's legislators discretion to vote on an Article 5amendment. And of course the state legislator, it works for the state, it works for the people of the state. It works subject to the constitution of the state. But what Hawke and Lesser establish is that that state legislator is free of the impositions of the state either through referendum or on the Constitution itself when that legislator votes on an Article 5amendment. And that's the same immunity that we think a presidential elector has.

How do we determine what the contours of this federal function, of the federal function would be?

I would look just at the text. The federal function in balloting, as Ray described it, is the function in casting a ballot as the 12th Amendment describes, and then the additional steps the 12th Amendment requires, which is to name the president and vice president, make lists and so forth, sign and certify and sent it forward. That's the function which the Constitution gives to electors, distinct from the power to appoint, which Ray also describes.

But does the 12th Amendment mention discretion?

No, the 12th Amendment mentions the vote. And of course, by requiring that someone make a list of the people that was voted for, it implies that there's more than one person that could be voted for. But of course the 12th Amendment also doesn't mention the state at all. Yet the way the state conceives of it, the state is a proctor that stands in the room as the electors cast their votes, looking over their shoulder. But that's nowhere in the 12th amendment. Your honor, that state doesn't appear in the 12th amendment except to name where the electors will meet.

You know, can the state remove someone, for example, I just wonder what limits, what authority the state actually has here. Can the state remove someone who openly solicits payments for his or her vote?

You can certainly. Of course, this court has said in Burroughs and in Fitzgerald v. Green, the state can certainly regulate corruption, and bribery would be corruption. And we believe that it's absolutely clear that the state has. That the government has that power right now.

So where's the authority? Where does that come from?

Well, it's interesting. Burroughs itself. Burroughs versus the United States, of course, found it inherent in the federal power to be able to protect federal elections from corruption. In Fitzgerald vs. Green, they saw it as incidental to the power to appoint electors, to be able to assure that the election, in that case, the vote by the people was consistent with law. Either of those could create the authority to avoid corruption. But of course, corruption, like bribery, is independent of the vote. You don't need to police and vote to be able to police corruption. Just as with the speech and debate clause, you can can convict a congressperson of bribery even though the bribery includes the vote that might have occurred.

Justice Ginsburg,

Mr. Lessing, I was surprised at the answer you gave to the Chief about Ray. I would have thought that under your absolute elected discretion view, Ray should have come out differently under your theory.

No, you, Honor. We think Justice Jackson in way was completely right about the original understanding, and we think Justice Jackson was completely wrong about what followed from that original understanding. The framers did believe that electors would exercise independent judgment. That's absolutely clear. But they did not inscribe that belief into the text of the Constitution. They could have. Maryland's Electoral college had that text in the Constitution to constrain the discretion in a particular way, but our Constitution didn't. Which means that the question in Ray was whether the state had the power to discriminate on the basis of political affiliation and loyalty when picking electors. And after the 12th amendment, we believe that's perfectly obvious. They have that power to discriminate because that's the function that the electoral college has come to occupy.

It's somewhat hard to understand the concept of something I am pledged bound to do. I have made a promise to do something, but that promise is unenforceable.

I understand, your Honor, and it's Difficult until we recognize how familiar it is. Every single political pledge is of this character. We couldn't find a single case in the history of political pledges where a pledge has been considered as anything beyond a moral obligation. We cited the Kucinich vs Texas Democratic Party case where Texas requires candidates to pledge to support the candidate in the Democratic Party. And that was upheld explicitly on the ground that that was simply a moral obligation. And we can see that in the context of Congress. Again. Again, there's no problem with requiring a member of the Republican Party to. To pledge to support the Republican Party as a condition of being a candidate for Congress. But we understand the speech and debate clause to say you can't punish them for their vote. And the pledge is not inconsistent with the speech and debate clause. It's perfectly consistent because a pledge is always and only a moral obligation.

Thank you, Justice Breyer.

Thank you. Good morning, Council. A state can appoint people, requirement that they be permanent residents of the state. That's all right, isn't it?

Of course.

Of course. And then could they say, and you must be a permanent resident at the time that you cast your vote?

Yes.

Yes. And then what happens if, in fact, Mr. Smith, who is a permanent resident when elected, changes his residency and goes to a different state before the vote is cast? Now, he is not a permanent resident. He hasn't met the state's requirement. And so could the state also say, in case that happens, we have an alternate who will cast the vote?

Yes, we believe they can.

Because the difference between that and this situation where they say, you must promise to vote for the person who wins the most votes, and then he gets to the room, and in that room, he doesn't live up to that requirement, just as he didn't live up to the requirement that he be a resident of the state.

Your Honor, the difference is the line between the appointment and the voting. The Constitution draws that line. It says that Congress can set the time of the appointment and they can set the day on which the vote is cast. And we believe incidental to the appointment power is the power of the state to assure that there is an elector there who will perform the function, the federal function of balloting. But once the voting starts, the state disappears. The state does not appear at all except to name the location of the vote. In the 12th Amendment, it certainly doesn't stand there to observe whether someone's voted properly.

If, in fact, he changes his residence 10 minutes before he casts his vote, then you could remove him. But he can't. They can't. State, when in fact he actually casts the vote. But surely a person who casts the vote for Jones instead of Black has in fact changed his mind 10 minutes before. And so can you not in fact remove him because of that preceding change of mind 10 minutes before?

No, because the pledge is a pledge made prior to the appeal.

It's not a pledge. In my hypothetical, it is a requirement that he in fact cast his. Not cast his vote, but that he in fact, be a person willing to cast his vote for Mr. Jones. Majority winner, at least 10 minutes before. I'm just trying to make it as close as possible to the person who changes his residence 10 minutes before.

But again, your honor, the Constitution gives the states no power to regulate the vote. They have the power to appoint and incident to the power to appoint. Ray said they can say you must make a pledge to support the party nominee. And at the time my clients made their pledge, they absolutely intended to vote for the party nominee. So the regulation that's authorized by Wray has nothing to do with what you've described, which is the regulation of the vote. Justice Alito.

Yes, Mr. Lessig, my question is similar to Justice Breyer's, or at least it follows along the same line. Suppose an elector is bribed. Between the time of the popular vote and the time when the electors vote, can the state remove that elector?

Your honor, we believe that prior to the vote, the state's power is the incidental power, exists to assure that the person who shows up has not engaged in a criminal. Is not engaged in a criminal activity. It's difficult to imagine how that plays out, though, because, of course, the claim someone has been bribed is a charge. It needs to be proven. And so we believe there's going to be a difficulty there with the bribery. But let's remember that the framers expressly considered this problem. George Mason expressly said a reason not to have electors is that they could be bribed. But what the Framers saw is that there were two risks. There was the risks of elector bribery, but there was also the risk of cabal and corruption. As Madison put it,

your argument must

be either that the electors cannot be removed by the state. The state says that at least some removal power goes along with the appointment. So I think your argument has to be they can't be removed, or there are at least some circumstances in which they can be removed. And if there are some circumstances in which they can be removed, such as when the elector has been bribed, why would the violation of a pledge not be one of those Circumstances.

Your Honor, we have said the bribe is different from a pledge because, of course, the bribe is proven differently from separately from how one votes. So we've recognized that there's a capacity to regulate bribery. But what I mean, your question is perfectly framed because I do want to assert that there's no power to remove prior to the vote the power that comes from, for example, three USC four, which Congress gives the states the power to fill vacancies, is the power to fill a vacancy once the vacancy occurs. It's not the power to create a vacancy. And that's the structure that the Constitution establishes as well.

So the state cannot create a vacancy by removing an elector who has been bribed.

Yes, unless the bribery statute makes as a penalty a removal from office and as a conviction prior to the actual time at which the vote has been taken.

But that's, of course, one other question, if I can. Those who disagree with your argument say that it would lead to chaos, that where the election where the popular vote is close and changing just a few votes would alter the outcome or throw it into the House of Representatives, there would be the rational response of the losing political party or elements within the losing political party would be to launch a massive campaign to try to influence and there would be a long period of uncertainty about who the next president was going to be. Do you deny that that is a good possibility?

If your argument prevails, we deny it's a good possibility. We don't deny it's a possibility. And we believe there are risks on either side, which is a good reason to avoid the risk adjusted constitutional interpretation. We agree that of course the possibility exists that you could flip electors. But look historically at the number of times that could have mattered. In fact, in the history of electors, There has been one elector out of the 23,507 votes cast who has switched parties against the majority party in a way that it could have mattered. That was the very first time this happened. Samuel Miles in 1796 in the Ordinary close election.

Justice Sotomayor, counsel, you compare in your brief the Electoral College to a jury arguing that they are structurally similar. Under the Constitution, you can't remove a juror because of his or her vote. But if that's true, I don't see how that helps you. A juror makes all sorts of pledges to be impartial, not to discuss the case with anyone during the trial, not to research the case with the parties, to tell the truth during rot dire. Yet if a juror is selected and violates one of Those pledges say the juror talks about the case with the other jury members. The judge is empowered. With others than the jury members. The judge is empowered to remove that juror. So why isn't a presidential elector subject to being removed in the same way? He has made a particular pledge different than remaining impartial, but he has told the people who have appointed him, I will vote in this particular way. I, you call it, morally commit myself. So why isn't that any different than a juror who says, I'm not going

to do this

and then does it and a judge can remove it?

Well, your honor, you've identified the core immunity that a juror has, and that is the immunity in the vote to convict or not. And we agree that is an immunity that cannot be regulated, can't be punished, it can't be fined for a vote in property. According to the court or the state, though there are other obligations. You're right. That you can be held to account for. We think that's perfectly parallel with the presidential elector. The presidential elector has an immunity in his or her vote. But of course, sitting in the electoral room, he can't cause a disturbance. He can't threaten somebody with a weapon. He can't engage in any number of criminal activities that might of course interfere with the opportunity to perform the duty. There's no general immunity. There's a particular immunity because the immunity to vote is an immunity from penalty for vote, just as the speech and debate clause cases have made clear.

Now, you rely a lot on history in your argument, but doesn't McPherson undermine your position very directly, just like Ray does? In some extent? In those cases, the court made clear that whatever the framers expected, and here you make a good argument that some of the framers originally expected electors to have discretion. That historical practice since the founding offered a practical interpretation of the Constitution. That's what Ray said and McPherson said. Experience soon demonstrated that the electors were chosen simply to register the will of the appointing state. That same principle undermine whatever you think some of the framers expected that historical practice, at least since the 12th amendment, has shown that states have imposed not just legends, but have imposed fines and some removal of electors who are faithless.

Your Honor, first, no state has ever prior to 2016, imposed a fine or removed elector. But number two, our argument has nothing to do with expectations. It is the state's argument that hangs on expectations. What we say is that The Constitution, as McPherson says, should be read not according to modern day expectations, but according to the words the ordinary expected, meaning of the words the Framers used in the constitution. So in McPherson.

Mr. Lesser. So let me ask you about those words. As I understand it, most of your argument depends on a particular reading of the terms vote and ballot and elector. And of course, you know, usually we think of those terms as involving some choice, but not necessarily people are electors at least formally. People vote at least formally. People cast ballots at least formally. At times when there is no choice, think of a Soviet style system or think of somebody who has pledged himself to vote because another person is voting another way. So why do these terms necessarily involve choice in the way you suggest?

Well, you, Honor, we believe, as Chief Justice Roberts has described, that the best way to understand these words, the best dictionary, is the Constitution itself. The Constitution speaks of elector into context. Article one speaks of what Justice Thomas has referred to as congressional electors, namely voters. And we believe the freedom of congressional electors is exactly the freedom of presidential electors. And we understand the authority of this Court to establish that the office, as Justice Kennedy put it in his opinion in Thornton, the office of the elector, the elector there, meaning the congressional elector, is created by the Constitution and it's free of constraints, either private constraints or state constraints. So it's the same sense of elector that the Constitution used. Now, of course, they could have said, we mean by elector in Article 1, someone who has freedom and discretion, but by Article 2, we mean what will become the Soviet Union conception of that would have been possible. We're not saying it's impossible to imagine this. We're saying the ordinary expected meaning of these words would have supported the discretion that absolutely the Framers expected electors would have.

And if that's right, Mr. Lessig, if your reading is very deeply contextual, then shouldn't we look to what happened in the very first elections under the Constitution, where you know immediately, right away, electors associated themselves with political parties, pledged their votes ahead of time, and it's that practice that has continued for over 200 years. So if your reading isn't demanded by dictionaries, but is instead demanded by context and history, doesn't the context and history suggest the opposite?

Your Honor, we believe the context in history supports the idea absolutely that electors were to pledge themselves. We're not saying that the Constitution required them to be Hamilton's philosophers. That's not our claim. Our claim is that the discretion that they created in the office of elector survives. So yes, look at 1796 where the first so called faithless elector, Sam Miles, switches sides. This of course is noticed and objected to. And indeed in 1800 that election also was complicated by the failure of electors to do what they were expected to do. Gallatin noted that to Jefferson and said to Jefferson, we should eliminate electors. And Jefferson said, yes, let's have a amendment. Justice Gorsuch.

Counsel, could a state, for example, ask an elector to make a sworn statement as to his present intention to vote for particular candidate, make the pledge an oath?

Yes.

And could a state later prosecute that elector for perjury if that statement under oath, if there's evidence that that was false statement?

In principle, absolutely, your Honor. We think in practice that would be just like with a judge making a promise to a Senate committee upon confirmation prior to a confirmation. That would be incredibly difficult to imagine enforcing in a way that wouldn't be just retaliatory against a particular elector.

And could a state say that we'll pay your expenses and give you a per diem for your service, but only if you carry out your promise to vote in a particular way that you pledged initially?

No. That's what Washington's new law in fact, does. That is, in effect, a penalty as well.

Why couldn't it do that if it could do the other things?

Well, again, your Honor, the difference is between a legal consequence or a legal penalty based on your judgment, your vote, federal function of balloting, which is free of state control, and the other incidental powers relative to appointment. And so in appointment, I want to make sure you're an honest person interrupting,

But I'm not sure. I'm not sure I understand where you're going. So I just want to cut to it if we can. So a state, in my last hypothetical is just simply saying, we'll pay your blunch, your travel and your per diem if you conform to your pledge under oath. And that's not permissible. But it is permissible to convict an electorate for perjury.

Well, that's right, you, Honor, because perjury involves a false statement at the time the pledge is made. In our case, our electors absolutely intended to vote for Hillary Clinton if Hillary Clinton won.

I'm not asking about your client. Just stick to the hypothetical, counsel, please.

Okay, but the hypothetical imagines that someone has committed a criminal act. Okay, on the basis of the criminal act, in theory, they could be punished. That's right. But the difference between an elector who gets compensated based on their vote or not based on their vote is a difference driven by the substance of the constitutional discretion that electors are given, the federal function in balloting, the right to vote.

And with respect to the perjury example could the state remove that individual and not count his vote?

Your honor, the perjury example does not allow them to remove the individual.

No.

And what we know in the context of other areas where votes have been tainted, for example, a bribery conviction which involved a vote in congress, is the vote is not counted. It's just a consequence of the separation between the prosecution to vote.

You indicated to earlier questions that you thought it was fine for a bribed elector to be removed from office prior to voting.

Yeah, I said that if you convict and convict the person prior to the actual voting, then you could remove them if it was the same would be true with perjury.

I suppose then too, no, if you

could structure the statute and succeed in the conviction. But of course, the perjury requires at the time a false statement. Thank you, counsel.

Justice KAVANAUGH. Thank you, Mr. Chief Justice. Good morning. Mr. Lessig. I want to follow up on Justice Alito's line of questioning and what I might call the avoid chaos principle of judging, which suggests that if it's a close call or tiebreaker, that we shouldn't facilitate or create chaos. And you, I think, answered and said it hasn't happened, but we have to look forward and just being realistic, judges are going to worry about chaos. So what do you want to say about that?

It's a good thing to consider, your honor. And what we've said is, yes, on the one side, you might worry that there's increased risk of, quote, chaos if electors have the discretion we believe they've always had. We suggested the likelihood that is tiny, given requires electors who are the loyal of the loyal to band together in dozens or, you know, three dozen in the last election and flip sides. And of course, the likelihood of that is extremely small. But what we've also said is there's risk on both sides. The 20th Amendment self consciously presupposed electoral discretion in the context of the death of a candidate prior to the vote in the electoral college. And if that happened, but laws like Washington and Colorado ban the exercise of discretion, then the votes from those electors could in principle be wasted, and that could throw the decision into the house, and that could flip the result, also unexpected, also potentially creating chaos. So there's chaos both ways. And the number of times we've had candidates die is actually twice as frequently as we've had, as we've had electors switch their vote and vote for somebody from the other side. So in the face of.

Can I. I'm sorry to interrupt. I want to get another question. You set this up Appropriately, as, in essence, the states versus the electors in some sense. But isn't it also appropriate to think of this as the voters versus the electors, and that your position would, in essence, potentially disenfranchise voters in the state?

Your honor, of course, in our case, the action of the electors was to further enfranchise the voters.

In the case, as a general theory. I'm sorry to interrupt. Wouldn't your position potentially lead to that?

It's potentially true. That's right, your honor.

Okay. And then the last question is. The question here is not whether the Constitution requires the states to bind election, of course. It's whether the Constitution permits states to bind electors. And on that question, why doesn't the 10th amendment, as justice, or the state's authority, preexisting authority, as Justice Thomas was suggesting, come in?

Well, your honor, first, of course, the state doesn't invoke the 10th Amendment, but if it did, it would fail. Because whereas in the Thornton case, for example, Justice Thomas could point to traditions that allowed the state to exercise the power that they wanted to exercise there. There is no tradition in America, maybe in the Soviet Union, as Justice Kagan suggests, but not in America, of a government exercising control over a voter, over an elector. That power doesn't exist. Therefore, it's not a question of whether it was taken away by the federal government. It wasn't given. It wasn't there before. And therefore, there is no 10th amendment power either. Thank you. You can take a minute to wrap up if you'd like. Thank you. Your honor, the question here has got to both be the constitutional and the pragmatic. And the constitutional question is simply the question whether there is a power in the states which comes from the power to appoint, and there isn't. And it is also the question whether the electors, as electors, the same sort of electors that Article 1 creates, have a discretion. And the discretion is the same discretion that which congresspeople have when they exercise their judgment not to be punished at all under the principles of the speech and debate clause. But there's also a question, we acknowledge, of the risks. But facing risks on both sides, this court should do what it can do, which is to interpret the Constitution as the Constitution was written and it has not been amended.

Thank you.

Thank you, counsel. General purcell.

Thank you, Mr. Chief Justice. And may it please the court. The Constitution gives states the power to appoint electors. That power has always included the power to set conditions of appointment, such as requiring that an elector live in the state or show up for the electoral college meeting. One Condition that states are clearly allowed to impose is is that electors promise to support the presidential candidate preferred by the state's voters. States have been choosing electors on that basis since the founding. This Court approved that condition in Ray, and the other side admits that states can impose this condition. The only dispute here is whether states can enforce this condition or any other valid condition of appointment. Petitioners say no, or at least that's what they said in their brief. They say that states cannot remove or sanction electors after appointment for any reason, even if the electorate is being bribed or blackmailed, even if they lied about their eligibility to serve in the first place, or even if they refused to show up for the meeting of the Electoral College. That is not the law, as petitioners now seem to acknowledge. Constitutional text, original understanding, historical practice, and this court's precedent all demonstrate that states can enforce valid conditions of appointment like those here. I'd like to start by discussing original understanding because petitioners want you to believe that this case presents a conflict between our country's long standing practices and the Framers intent. But two stubborn facts refute their claim. First, the Framers and their contemporaries clearly understood that states could remove or fine electors after appointment. From Even before the 12th Amendment, many states had laws removing or fining electors for violating the conditions of their appointment, repudiating a central premise of petitioner's claim. And second, as this Court recognized in ray and in McPherson, from the very first presidential election, states have been choosing electors specifically because they had promised to support a particular presidential candidate. This contradicts petitioner's claim that the Framers viewed the exercise of discretion as central to the electoral role. And it shows that petitioner's quarrel is not just with our long standing practice, it is with the Framers themselves. Accepting their position would mean concluding that the Framers misunderstood the role they had created.

General, could the legislature appoint whomever they want to be an elector?

You know, there are certainly some limits on the discretion. Other constitutional provisions, such as Equal Protection Clause imposed limits, of course. But in general, states have exclusive authority, as this Court has said, to appoint electors into set conditions of appointment.

And certainly I would say after, they don't appoint electors in any way before the the national vote and then they select the electors that they would like after that vote. Is that all right?

I don't think that's all right, you, Honor. I would need a few more facts to know for certain. But the risk there is that once the State has given to the people the right to vote for President, that right is Fundamental, as this court has recognized. So the state legislature cannot override the will of the people by appointing electors to do something different after the fact.

That.

So that would not be acceptable. But the state does have the authority to enforce valid conditions of appointments, such as just requiring that an elector show up for the meeting of the electoral college. And on the other side's view, even that is unacceptable. And as you heard today, I'm somewhat confused about exactly what their position is on this, but it seems they're saying you cannot remove someone even if you know they accepted a bribe, unless you can somehow move through the criminal process before the electors meet.

And.

And that's just absurd. It's completely contrary to the historical record. And it leads to a dangerous consequence, you, Honor, that there's a huge incentive onto the other side's view for those who want to meddle in our presidential elections, whether it be a foreign power or just a wealthy individual, to attempt to bribe or blackmail electors. And it's quite easy to imagine a foreign government hacking into the computer of a few dozen electors to find embarrassing information about them and try to get them to change their votes. And if there's nothing the state can

do about that, the state law for electors say that they have to vote for the slate of the party that sponsors them and that they will be certified as electors unless the circumstances after the election have changed to the extent that the legislature thinks the electors ought to be changed. In other words, not unbridled discretion with the legislature, but a condition known to the electors before they were selected. Would that be all right?

Mr. Chief Justice, I think that raises the same challenge as your earlier hypothetical, that while the legislature, in the first instance has the power to set, you know, any condition that complies with the Constitution, once the legislature has given to the public the power to vote in the presidential election, they cannot override that vote, consistent with the equal protection clause in this court. So, you know, your hypothetical, I think, pushes up against that principle. And it's not just what commitment are you asking the electors to make, but what have you told the public about their role? And of course, under the other side's theory, the public role we currently think of as the presidential election process, the campaigns, the debates, the rallies, the voting is all irrelevant and always has been. It's purely advisory.

And so.

And all they have to do is tell the public that when it comes to electors, we're going to follow Mr. Lessig's view.

I'm sorry, Mr. Chief Justice, I don't understand the. I don't understand the question.

Well, the question is you're suggesting that

the critical factor is whether the state's conduct is based on a condition prior to the selection of electors. And if the electors know that they have the discretion or that the state. Excuse me, that the state has the discretion to replace them and the people

know that, shouldn't that be enough?

No, Mr. Chief justice, the critical point is that if the condition is constitutional, then the condition can be enforced by removal or by sanction, just as it has been since before 1800. So if the condition is, you have to show up for the meeting of the Electoral College, the state can enforce that. If the condition is, you have to pledge to vote for the candidate chosen by the state's voters. We know that's a valid condition. The state can enforce it.

So that's the crucial also.

Justice Thomas?

Yes. Thank you, Chief Justice.

General Purcell, just to clarify, could you give us precisely some of the limitations on the restrictions that the state can impose on the electors? I understand you can require them to show up for the vote. I understand that you have the limit of what's constitutional. But beyond that, what else limits you? Well, I think those are meaningful limits, Justice Thomas, and those are the limits. This Court has said that the power of states over appointment is exclusive, is plenary. Obviously, as I said, the Equal Protection Clause imposes limits. Other constitutional provisions, like the Presidential Qualifications Clause, impose limits such that states can't, for example, restrict electors choice of who they can vote for in a way that would violate the Presidential Qualifications Clause. But other than that, states have plenary authority to appoint electors and to set valid conditions. If the condition is valid, if the condition is constitutional, then the condition can be enforced. That's our position.

Yeah.

Well, I guess that's why we're here. But one other question I'm interested in what you think and how you would define the scope of the federal function concept. Your Honor, I think there's three crucial problems with the other side's federal function argument. The first is that it's just not even supported by the cases they cite. Burroughs and Wray mention federal function in the sense that there is a federal interest, obviously in the conduct of presidential elections, but they don't say or imply in any way that the Supremacy Clause restricts state authority over electors. And second, the whole point of the federal function doctrine is to prevent state interference with actions of the federal government and with actions of federal officers. And in this context, the federal government does not elect the President and electors are not federal officers. And the third Point yout Honor is a historical one, that if they were right about this federal function idea, then states never, ever would have been able to remove or sanction electors for any reason. And yet we see statutes from even before 1800 in many states that provided for exactly that for removal or sanction of electors. And under the other side's theory, those statutes have always been unconstitutional. And under the other side's theory, the state can't remove or sanction an elector for any reason. As far as I can tell from their theory, even if the state knows the person has taken a bribe, the state cannot remove or replace them. Even if the state knows that the person is not going to show up for the meeting of the Electoral College, the state cannot remove or replace them, even though states have been doing that again since before 1800. So I just don't understand how the other side's theory is at all consistent with the original understanding. It's just not the original understanding. It's an academic theory that has never been put into practice.

Thank you, Counsel.

Justice Ginsburg,

what do you make of the fact that Congress has never failed to count an anomalous electoral vote? Not once? It has always accepted the anomalous votes, Justice Ginsburg.

I think that highlights Congress's view that it should defer to states about the votes that they certify to Congress to count. Of course, in every example that the other side has given, the state had certified those votes as the state's votes. But if you look at 2016, Congress also counted the votes from Colorado and from Minnesota, where the state replaced faithless electors with electors who promised to vote as pledged and did vote as pledged, and Congress counted those votes as well. So what you see in the history is Congress deferring to the state's designation of which electors are validly appointed by the state.

Thank you, Justice Breyer.

Thank you, Counsel. I'd like you to assume Whether this is Mr. Lessig's argument or not assume this is my argument. For present purposes, the only thing a state cannot do is to punish the elector for the way he actually casts his vote. As far as bribery laws are concerned, there are plenty as far as gratuities, all kinds of things. What he's doing before he'd accept a bribe or promise to be for the only thing is the actual casting of the vote. Now there as to that, what would happen? And there have been quite a few faithless electors. For the most part, it hasn't mattered. Where it really might matter is if somebody died or some catastrophe happened or worse, there it might matter. And in the one case, Congress refused to count votes which were cast for the person who was promised Horace Greeley. And so there is a mechanism in Congress to protect catastrophe, namely, they count which ballots they choose to count. The alternative is your alternative, which is the state tries to control it, which is the greater danger, which is the greater safeguard to have a Congress that will decide what to do with the faithless electoral vote or to have the state possibly who knows what they could

pass as a requirement.

What is your opinion about that?

Well, Justice Breyer, there's a lot there. And I want to start by addressing your last question about what can Congress do? Congress cannot solve this problem because Congress cannot appoint an elector for a state. So even if Congress could reject a ballot, for example, if it found out, if it knew that the elector had been bribed, the state has lost that electoral vote and cannot get it back. The state cannot. The Congress cannot appoint a new elector for the state. And just rejecting that ballot might alter the outcome of the presidential election, or rejecting several ballots might. The idea that Congress can solve this after the fact is just. It's not true and ignores the constitutional delegation of power to the state. Turning to your other points, I mean, there's just no I want to an example, I think helps illustrate why there's really no constitutional difference between failing to show up and failing to keep your promise. Imagine two electors who both do not like that nominee eventually, who eventually wins their party's nomination and wins the general election. One says, I'm not going to show up for the Electoral college meeting because I don't like this person. The other says, I'm going to show up and I'm going to vote for someone else. Both have violated valid conditions of their appointment. Both can be removed and replaced by the state. And there's no constitutional problem with that.

So there is a difference between the two. In the one case, your state is punishing a person for what he does before voting. In the other case, he is punishing him for the way he casts his vote. And that is what I think the other side says is the one thing the state cannot do.

First of all, Justice Breyer, Washington's revised law now removes the person before they can vote, just as Colorado's law does. Washington's prior law did impose a fine for breaking your pledge for violating the condition of appointment. And there's nothing wrong with that. If you look historically, from even before 1800, states had fines for violating conditions of appointment. And so and it's Also quite common for appointed officials at the state and federal level to potentially face consequences for voting in violation of a promise. So for example, the United States Ambassador to the UN certainly has a vote in the UN General Assembly. But if they vote differently from how the president directs them, the president, of course, can sanction them or remove them. So it's quite common with a poll appointed officials that they can face consequences for voting differently than they promised. And that's what this is just a straightforward example of.

Thank you very much, Justice Alito.

Counsel, does the Constitution impose any limit on a state's power to attach conditions to the appointment of an electoral

Some.

Justice Alito, the ones I was referencing earlier. So obviously the state cannot impose conditions that themselves would be unconstitutional, such as race based conditions, for example. But our. I'm sorry, go ahead.

What else?

Well, as I said before, the state can't impose conditions that would violate the presidential qualifications clause. You know, other constitutional limitations might come into play if the, I mean, it's hard to imagine what. But our basic point is that if a condition is constitutional, and we know this condition is, then that condition can be enforced. That's the key question. Is the condition itself constitutional?

Could a state require electors to cast their votes for the candidate chosen in a resolution passed by the state legislature after the popular vote is cast?

No, you, Honor. That's what I was trying to say in answer to the Chief Justice's question as well. That would violate the public's fundamental right to vote once they have been granted that right by the state and violate their fundamental right to vote.

I didn't quite understand that answer. Is a state obligated to choose electors through popular vote?

No, you, Honor. As at the beginning in the early days, the legislature can choose electors directly if it wants. And in that circumstance, the legislature can impose and enforce a pledge. But once the elect. Sorry, once the legislature has given the power to vote to the public, the public now has a fundamental right to vote and to have their votes counted equally. And as this court has said in a number of cases, and so the legislature can't then override that vote after the fact.

Why is that? So could Washington say we are going to choose five wise people, I'm sorry, 12 wise people to be our electors, and we are going to allow the public to advise them through a popular vote to give them the sense of what the people of Washington want? Would that be unconstitutional?

If the legislature made clear that the public vote was entirely advisory, then I think that presents a tough question, but I think they probably could do that. The key compromise of the Constitution as to electors was to leave it to states to decide exactly what authority they would have. States were free to decide to leave electors with discretion, as some states did then, as some states still do today. But states were also free to choose electors on the basis of who they had pledged to support, as many states did from the beginning, and as the majority of states do not.

What is the difference between that setup and the setup that Mr. Lessig says is required?

Well, your honor, the crucial difference is that Lessig is saying there's nothing the states can do to remove or sanction electors after appointment for any reason. And we are saying that we know from history and we know from Ray, and the other side even admits that this condition, pledging to support the candidate preferred by the state's voters, is a constitutional condition. And that condition can be enforced just like any other constitutional condition. That's the key. That's our key point. And states have been removing and replacing electors for violating conditions of appointment since before 1800. Seats have been choosing electors specifically because of who they pledged to support since the very beginning. If the other side were right about how electors were supposed to operate, what you would have seen historically is electors trying to convince legislatures and the public to choose them because of their great wisdom and knowledge. They would have been saying, choose me. I will decide well on your behalf. And that is never, ever how American presidential elections have operated. Electors were chosen because of the candidate they had promised to support. So to adopt their view would be to radically change, to radically change how American presidential elections have always operated.

Justice Sotomayor.

Counsel, I'm curious about your views on the 10th Amendment. The other side points out that you never raised it. Two of my colleagues have referred to it. But am I assuming correctly that Thornton sort of puts a quash on relying on the 10th Amendment in a situation like this? This is a new procedure that Congress intended, so the states can't say that they expected or reserved a right in something they never knew they had.

We didn't explicitly argue the 10th amendment, but we don't think we need to rely on it. And we support our colleagues in Colorado in making that argument. We think that the fundamental premise of the constitution is that states have. The federal government is one of enumerated powers. States have powers unless they're taken away. Nothing in the constitution restricts state authority to impose conditions on appointment of electors and to enforce them. And even if that weren't the case, the text itself gives states power to appoint electors. That phrase this Court has repeatedly said the appointment power inherent in that power is removal power unless there's contrary language. And the original understanding has always been that the appointment power of electors included removal power, as you see in the early statutes. So I don't think the Court needs to rely on the 10th Amendment to resolve this case. But I think it certainly the background principle that states have powers unless they're limited by the federal Constitution is relevant and supports our side.

Now, you rely on a default rule in your brief, which you haven't mentioned yet, which is the power to appoint includes the power to remove. But all of the examples that you rely on are vertical appointments when an official within one branch of government appoints a subordinate in the same branch for an indefinite period. The idea is if I appoint you, I should be able to get rid of you if in your service to me, you are doing something wrong. But here the state is appointing a voter to do something that most people think of as requiring judgment and judgment and some measure of freedom, which is the power to cast a ballot. The other side, in inspiration, points out that there were other words that would have connoted, that would have connoted something different than a lecture like a delegate. You appoint a delegate to cast the vote for you, but that's not what Congress chose. Appointing an elector. An elector has a sense of someone who's going to.

So

how can you say that that tradition within the executive branch of the power to remove is controlling here?

Justice Sotomayor, there's really three fundamental problems with the electors argument on that front. There's a textual problem, a historical problem.

I don't think it's their problem. I think it's your problem.

Well, I guess I'd say none of the cases say anything like what theirs. They have drawn this vertical appointment. Langu. Well, first of all, it first appears in their reply brief. In their opening brief, they said that that rule, well, they didn't mention the default rule at all. They suggested it was just the executive branch. And then in our response, we pointed out, well, actually there's a bunch of cases from the judicial branch applying this rule. And now they've invented this kind of vertical rule. But that rule appears nowhere in the Court's cases. The Court has said in context after context that the removal power is inherent in. It just comes along with the appointment power. You set it in constitutional cases, statutory cases, high level officials, low level officials, judicial branch, executive branch. And even if you hadn't said that over and over again, if you look at the history here the history shows that states could remove electors from the very beginning. Again, statutes from before 1800. And the other side's theory on this front also is that once the state appoints the elector, they somehow become part of another branch of government or something like that. But the Court has rejected that idea. The Court has said that these electors are not federal agents or officials. The Court said that very clearly in Fitzgerald over a century ago. So their newfound theory about so called horizontal appointments, it's just not supported by text, by history, or by precedent. And it's kind of a sideshow, frankly. It's just not. It doesn't help answer the question here. The Court has never drawn that distinction.

Thank you, counsel.

Justice Kagan, General, what do you view as your best textual argument?

Well, you, Honor, we think the best textual argument is just that nothing in the Constitution limits state authority over how to appoint electors or what, or whether states can impose conditions and enforce them. We think there's a direct grant of authority in the appointment power, as this Court has repeatedly recognized. And we think that certainly by the time of the 12th Amendment, everyone understood that electors were being chosen in the states because they had promised to support particular candidates. So the idea that when the framers of that amendment used the word elector, they inherently meant someone who can exercise discretion, it just doesn't make any sense. That is not how the term was being applied in any of the states. That was not how they understood it. And in fact, the framers of the 12th Amendment quite clearly intended to, to embrace the system as it had developed, where electors were pledging their votes and states were choosing them on that basis. This Court said that in Ray very clearly. That was a key point of the 12th Amendment.

If I understand you correctly, you're really saying you don't have an affirmative textual argument. What your argument is is that the Constitution doesn't say, and in that, if the Constitution doesn't say, we should presumed that states were meant to decide.

Well, let me be more precise, Justice Kagan. I think the starting principle is right. That should be the other side's burden to show that we can't do this. But the power to appoint does include the power to remove it. So there is a textual grant. And what I was getting at the end there was just that the central premise of the other side's argument is that these words, elector, especially elector, require the exercise of discretion. And that's not true as a textual matter. And it's absolutely not true as a historical matter. And so that's, I guess, the point that I was trying to get at there was that it's their argument, really, that asks you to ignore the original understanding in early practice. And they're asking you to do that based on words that meanings of these words that just are not how the framers and their contemporaries understood them.

Isn't the idea that the power to appoint includes the power to remove highly contextual, that it depends on a certain understanding of control? Which is exactly the question here. You're sort of assuming the conclusion by saying that.

I disagree, you, Honor. The court has said repeatedly that the power to appoint includes the power to remove unless there is text limiting that power, and that limitations on the power the Court has said will not be implied. And again, the court has said that in many, many, many contexts. And really, the only time the court has found otherwise is where there was explicit text limiting the removal power. And so I don't, you know, I don't want to, I don't want to overly emphasize this point. I think it's at least as important that when you look at the early understanding, the framers and their contemporaries clearly understood that states could remove and replace electors, and they also clearly understood that states could choose electors because of who they had pledged to support. So, you know, I think, I think it's the other side that really is asking you to rip these words out of context and place vastly more weight on them, on these kind of dictionary definitions untethered from how the framers actually applied them. They're asking you to adopt kind of one possible reading that the framers could have had of these terms, but it's a possible reading that is just refuted by what the framers and their contemporaries actually did. And it also. Your Honor, Justice Kagan, it leads to the absurd consequence that everything that we think of as the presidential election process currently is really just advisory. It is all largely irrelevant. It just, it just, you know, all that matters is who the electors choose. And on the other side is telling they can choose whoever they want for whatever reason they want, and they can't be removed even if they're taking a bribe or even if they're being blackmailed, or even if they say in advance, I'm not going to show up for the meeting. It just, again, it would radically change how American presidential elections have always worked in our country.

Thank you, General Justice.

Justice Gorsuch.

Counsel, I understand your argument is that a thousand dollar fine doesn't diminish or negate the fact that the elector here is voting and has, in some real sense, a right to vote that's being honored. But what about the new law that both Washington's adopted and I know Colorado has too, the Uniform Faithful Presidential Electors Act. And I know you're going to tell me it's not before us, but put that aside for the moment, if you will, for purposes of this question that as I understand it, and you can correct me, that if an elector renders a faithless vote that automatically removes him from office as a matter of law, and in fact, votes aren't even counted until the Secretary of State has collected the requisite number of ballots marked for the right people based on pre existing pledges. Is that consistent with the Constitution's prescribed order of appointment, meeting and voting? It seems like the voting comes first and then the appointment under the uniform law. And is it also consistent with the Federal Electoral Count Act?

If you could just speak to me

about those questions, I'd be grateful.

Certainly, Justice Gorsuch, it is consistent because the way that the laws work is that the elector who seeks to violate the conditions of their appointment by casting a faithless ballot is removed before they can vote. They're not removed before they're appointed. They are initially appointed, but then they're removed when they violate the condition. And then they're replaced and another elector is appointed who will follow the law that they promise to follow and keep their promise and vote as directed. So the order is proper. It's appointment and depending when in the process the elector announces their intentions, they're removed and they're replaced by someone else who votes in accordance with state law. And to come back to my example from earlier if I can, there's really no meaningful difference between the person who says, I don't like our nominee, I'm not showing up for the meeting, and one who says, I don't like our nominee, I'm showing up for the meeting and I'm voting for somebody else, the state. Both people have violated valid conditions of appointment. Both people can be removed by the state, replaced by someone else. The other side's position is neither of those people can be replaced. And even the person who says, I'm not showing up because somebody gave me $2 million to not show up because that might affect the outcome of the election, the other side says that person can't be replaced. That just makes absolutely no sense historically, textually or practically.

Thank you, Justice Kavanaugh. Thank you, Chief Justice. Good morning, General Purcell. If you're right about the electors not having this kind of discretion from the Constitution, I wanted to get your take on provision of Article 2, Section 1, that says no senator or representative or person holding an office of trust or profit under the United States shall be appointed an elector. What is the purpose, you see of that provision, if your theory of the electors is correct?

Yes, Justice Kavanaugh, thank you for that question. So the framers did not spend a whole lot of time talking about the exact role of electors, and they certainly did not agree on exactly what role they would play. But one thing that they were clear on was they did not want Congress choosing the president. And so they specifically prohibited members of Congress from serving in that role. But they left it to states to decide whether electors would serve as kind of, you know, as Hamilton envisioned them, as the kind of sage chooser on behalf of the state, or as many other framers wanted the electors to be agents of the people, to act on the people's behalf and for the people to choose them and for them to be bound to that outcome, to be bound to the people's preference. So, yes, they imposed that limited limitation on who could serve. And that is, you know, another example of a constitutional condition limiting state authority. But again, it just goes to the point that if the state can set a condition to serve as an elector, that condition can be enforced.

Mr. Lessig says that the framers considered various modes, obviously, and you agree, and history shows they considered the states doing it directly, or at least that was an idea out there through the legislatures or governors. They considered Congress, as you just pointed out, but there was a separation of powers there problem there. They didn't necessarily want the new president to be too dependent on Congress. Popular election was not adopted. And so they came up Instead with what Mr. Lessig describes as a indirect mode of selection, with the model of electors who would exercise, as he sees, at their own discretion, an independent judgment to pick the best person to be president, the best person to head the executive branch. And he says that mode remains indirect, consistent with the Framer's choice, only if the electors retain a legal discretion. So on that overall structure that Mr. Lessig sets up and describes the history, why is he not right, given that they rejected all these other modes?

The framers had a number of concerns about direct elections that included logistical concerns and concerns about the impact on the influence of southern states. But ultimately they settled on an approach that left it to the states to decide, as this Court said in McPherson, the broadest possible power of determination as to how to appoint electors and what role they would play. The options open to states certainly included both leaving electors with discretion, as some States still do today. And, and states choosing electors specifically because they had pledged to support particular candidates, and certainly by the time of the 12th Amendment, that had become the virtually universal practice in states. And the framers of the twelfth Amendment well understood that and adopted the language of the 12th Amendment to facilitate that. And if you need a historical example, if that would be helpful, in the election of 1804, right after adoption of the 12th Amendment, it operated just as they had expected. The parties put forward presidential and vice presidential tickets. Electors were chosen throughout the country because they supported those tickets. And every single elector in the country voted for the party ticket preferred by their state's voters. And the meetings of the electors, even in 1804, were, in many states, mere formalities. They filled out pre prepared ballots. They did not discuss or deliberate, and Congress did not question a single one of those ballots or their validity. So that just shows that by the time the 12th amendment, as this Court has said repeatedly, the role of electors was simply to transmit the vote of the state for president.

Thank you.

Thank you.

Counsel, would you like to take a

minute to wrap up?

Yes.

Thank you.

Mr.

Thank you.

Mr. Chief Justice. Every four years, over 100 million Americans participate in our country's presidential election process. They attend rallies, they watch debates, and ultimately they go to the polls. More Americans participate in this election than in any other democratic process in our system of government. But under petitioner's theory, this entire process is irrelevant and always has been, because all that matters is who the electors prefer. On their view, the electors can choose whoever they want to be president, regardless of any voluntary commitments they made to secure their position, regardless of how their state voted and regardless of whether they are being bribed or blackmailed for their vote. That is not the law. The Constitution's text, the original understanding, this court's precedent, and our country's historical practice all demonstrate that states are allowed to require presidential electors to vote for the candidate chosen by the state's voters. And to enforce that requirement, we ask you to reaffirm that principle today.

Thank you. Thank you, General.

Mr. Letzig, you have two minutes for rebuttal.

Thank you, Mr. Chief Justice. Your Honors, the state has relied upon early statutes which it says affirm the power of the state to remove electors because they violate a condition. Absolutely none of those statutes had anything to do with the conditions on voting. Those statutes related to the appointment power. They were incidental to the appointment power. So we can see, obviously, that incidental to the appointment power, the state has the authority to make sure someone shows up to vote. And we believe that general laws apply to electors as well. This is not a general immunity, but they have no power to control the vote and they never have exercised that. The state has asserted that because they appoint the electors, they get to control the electors. But in fact, the authority they rely on is quite explicit. Myers at page 119 says the reason for this is that those in charge of and responsible for administering functions of government and need the authority to control them by removing them. That was the reason for the principle. But there is nothing in the founding to suggest that the framers imagine the states administering the electoral college. That's why the states don't appear in the 12th Amendment at all. And finally, your honor, if you recognize this power, how are you cabinet? If you find a state has the power to regulate electoral votes, may the state forbid the elector from voting for a candidate who has not visited the state, who has not released his tax returns as bills in New Jersey and New York purport to do or is not pledged to appoint justices who will uphold Roe? Open this door and there are an endless list of partisan opportunisms that will tempt the states. Throughout history, there have been amendments to change the elector discretion every single time. Recognizing there was that discretion for the state of Washington in 1977. To discover it is to show they were chumps believing they didn't have this power. And we believe the power has always been with electors to exercise discretion. Thank you.

Thank you, council.

The case is submitted. Sam.