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Understanding 9/11tv Supreme Court Oral Argument in Colorado Dept. of State v. Baca CSPAN May 14, 2020 4:26am-5:29am EDT
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this oral argument is one hour. >> the colorado department of state i noted at the outset justice sotomayor is recused on the case. >> the constitution authorizes the states to use their authority to remove the elector one who engages in a rebellion or one who would perpetrate a bait and switch on the people of the state by voting contrary to the binding pledge. rather than as proxy voters, they are free to do so. the states determine how to select electors and ensure they meet the relevant requirements and perform their duties as
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assigned. this means they can oversee bribery as the power to appoint. this must include the power to remove and elector without requiring a full criminal trial. under my friend's position as a practicality, they would cast a valid and illegal votes. in this case the state presented him from casting the ballot just like it is an illegal ballot if you don't find it here in colorado. as the court explained the purpose reflected the reality that the act did as pledge agents for their political parties and the history of such should be given great weight. as the justices point about the importance of enforcing the pledge requirement, it's worth noting people rely on such as this take involuntarily.
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it would be have nothing of value. states continue to enact a law to enforce the pledge. congress diverted to the plenary authority and no other has invalidated the pledge funding wall if mr. chief justice, i would welcome your questions. >> my first question is to ask if there is anything general said on behalf of the state of washington with which you disagree. >> i would add a ringgold heated introduced the amendment. the constitution gave the states the authority and the tenth amendment underscores that point. >> what you state for me exactly what you think the limits on the state power to replace the electors are.
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>> i would echo my colleague from washington it governs whether or not another constitutional provision is violated. the 14th amendment quite notably means the state couldn't remove based on race or religion. also the qualifications clause means you can't remove for the purpose of adding notifications for who can be president. >> if you selected electors and requirements that have to be relatives of the legislators, that would be all right? >> here in color rather we pick them in 1976. the state legislature did it directly. as long as that doesn't violate the provisions they can pick whoever they want. >> what if the rule is they are choosing pursuant to slate but anyone who says anything
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disloyal to the state between the time where selected and the time they cast their vote will be replaced? >> once people are voted to make a choice people have the right for the battle to be counted. to note about lots of people would be invalidated after the fact and the sports line of right to vote cases. >> what about the bribery cases were bribery hypotheticals that have been discussed? >> and the ability to remove is crucial for the states to have and not only after the criminal trial but after there is a basis for this concern.
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if the state failed to remove the bride elect or come of the state wouldn't have violated the constitutional provision. it would violate the duty. >> authorized to remove those that have taken a bribe if that is your question. >> what about the power to remove the argument? it seems to cases involving the power to appoint if by executive officials or the president do say that it carries with it the power to remove. that has always been with respect to inferior officers and the electors here it seems to me are not inferior.
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they carry rights as appointees carrying a federal responsibility as well so i don't see how those support your position. >> your honor, we disagree. the constitution clearly gives states plenary power over electors and acting as a steward of the presidential election system. that means if they were to take a bribe, for example, or not to show up it's on the state to address that point. if you only elect to congress in the final instance, that would mean all congress could do is remove the elector and not have it be counted. the states can do is replace and make sure the state as the constitutionally authorized votes in the electoral college. as such they played a critical role and that includes the power to remove. >> thank you, general.
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>> i wonder if you think under our precedent standing where the person is removed from an elected office. >> your honor, the cases involving removal from an elected office involves an official with a salary. what is unique is there is no salary or other personal injury. for this at issue is the issue with salt and has made clear in the line of cases the individual doesn't have standing to challenge that he or she may believe it is unconstitutional. >> at what point do you think that there would be? >> justice thomas, insofar as someone gives up a salary like an executor, you have this fact.
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if it's an honorary position, volunteer position, there is no personal injury. there is a quarrel with each institutional role. >> on a separate issue. throughout i guess our history there've been not pledges, but can you point out the first state law that require ledgers in the history? >> i can. it was oregon tha but did so ine late 19 teams and what i want to underscores that wasn't the first time in elector was removed. in 1912, nebraska without any binding vaulted remove and elector promised to violate the pledge because the court in that case the nebraska supreme court said it would have been a fraud on the people of nebraska.
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>> you attach your self to the argument of the general. could you give me what your take is on the? >> with pleasure, justice thomas. that doctrine doesn't really fit here. under the constitution is the role of the states as the stewards overseeing the presidential election process. the typical federal function case you are worried about the state interfering with a federal official. here as the court has made clear multiple times, electors are not federal officials. they are appointed by and overseen and transmit the vote of the states. >> thank you, gentlemen. >> justice ginsburg. >> can you give us an idea of
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the practical consequences of a ruling one way or another? how would a ruling against you actually alter the democratic process? most states already require elector pledges to and this voting throughout the years has always been rare. so how much difference does it make? >> your honor, the chaos that could result from upholding the ruling is one that could occasion a crisis and as was noted by my colleague from washington if the states have no ability to remove dried electors and all that's left is the ability to choose to count or not count the fact in an open enough way with knockout with limits but who could vote in
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both -left-brace way the outcome of the presidential election. it's the rul role of the state o oversee confidence to ensure the public voices heard in all of those values are at stake in this case. >> returning to the standing question come after being removed from his post, isn't that a stigma at least? one may not have economic consequences, but isn't it a was on his reputation? wouldn't that constitute? >> the auditor believed he suffered a stigma and that concern wasn't sufficient to give him standing.
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i would submit the same rule holds here. >> thank you. >> this is a lawsuit brought against you, the state under section 1983. the court's opinion i take it have made clear a state isn't a person under 1983. everybody has waived the argument and both sides would like us to rule but can they if someone sues a foreign country under 1983 and the country can't be a defendant under 1983? can the party simply get an opinion from the court by awaiting the question? >> i would start with justice ginsburg's opinion where she made claim that whether or not there is a claim for relief anda statute isn't a jurisdictional
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question. what we are dealing with here under 293 and 11th amendment immunity is strategic decisions made by the state in the course of litigation. we made those decisions because we want to litigate on the merits and we believe we have a case on the merits and standing and that's how we have chosen to proceed. >> my question is o of course he wants a decision from the court that mr. smith might want a decision about how the constitution applies to somebody in mexico or somebody in russia. can the parties get that advisory decision by saying the wave of the non- jurisdiction problems or the problems that say this statute doesn't apply? >> this court will opt for courr whatever grounded chooses with respect to if they have to rule on it the answer is no.
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for us this is one of several strategic questions to litigate. >> the other question i have is a the first state passed a statute that actually removed or punished a person for voting the wrong way. so, were there cases of bribery that went unpunished and if so, how many and what happened? were their votes counted although they were bribed? >> the first statute is the late 19 teams in oregon. >> which required a pledge that didn't punish people for how they voted. regardless, same point. >> we don't have the history of what types of changes were made. as the professor knows and debris for example in michigan there were those that just
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didn't show up and were replaced on the day they had to meet. we haven't had those that are upset about having been replaced or not counted. >> my question has to do with bribery and before the first one was passed a were their instancethereinstances of an elg bribed and if so, how was it handled? >> we don't know of any such instances, your honor. >> justice alito. >> in past elections were their campaigns to influence electors after the popular vote was cast for the purpose of either reversing the results produced in the electoral coach by the popular vote were throwing the case into congress? >> the most famous such cases
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have been 76 involving the dispute election. >> many other question essentially concerns me with respect to the conditions of all ththe counsel in these two cases and that is limitation if any on the arguments are being made. so is it your position that state has power to remove and elector and if not, under what circumstances can and elector not be removed? >> from mcpherson we have the plenary authority oversight and removal power and the constraint on that is other independent constitutional conditions such as those we discussed previously under the amendment. >> supposed the legislature is
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in the hands of a political party other than the party of the candidate that wins the popular vote. can they simply remove all of the electors that were pledged to vote and replace them with others? >> this is an important point. but the first answer your question and get to a slightly different one that raises the same concerns. if the legislature announces the procedure in advance and gives people the right to vote and they exercise the right, they cannot undo the public right to vote without violating the right to vote line of cases however if they acted earlier essay in the prior spring to change the process and to give itself the power to appoint electors, not the power in the hands of the people, that is the choice state legislatures could make. it was litigated whether or not they could move from the winner take all to the district system
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there was a partisan motivation for the change and the court said the legislature's power was plenary. >> if we agree that the legislature has plenary power to remove electors, then won't the people of your state understand when they cast their vote for president at the legislature has the power to remove the electorate and replaced with others? >> it's that the public be told what they are voting on.
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the public has a right for their ballots to be counted and they said that the tenth amendment reserves only those powers that the state hav had prior to the ratification of the constitution how can the tenth amendment support you consistently? >> thank you, justice. i would suggest a similar principle to what justice kavanagh articulated earlier. if you have a close case you avoid creating chaos and if you have a close case you avoid intruding on federalism concerns and that is grounded and represented in the tenth amendment.
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>> your honor, as a strict matter that is what the tenth amendment does, but there's also be interpreted principal picked up for example in gregory versus ashcroft says when looking at and trojans on state power and limits on state power you do so lightly. >> he ended hi his argument by giving a number of hypotheticals he said if the state can do what you are doing and the state can also say enforce pledges to vote only for candidates who visited the state or who released her tax returns or take the position on certain issues. is that right? >> not necessarily. the tax returns have been litigated under the clause in california and it said it constitutes adding the
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qualification to be president. moreover, there' there is also n independent question about whether or not you could have a state saying we won't allow someone to be on the ballot if they haven't done it y. and z. and in the california case it wasn't in this context but access to the ballot that it arose. >> if you rely on the qualifications, sai could it influence on the qualification? in other words that the candidate have actually received more votes than anybody else in your state? i wouldn't interpret that because the right of the states to have a system where people could be heard as part of the original constitutional design and then again confirmed in the fourth amendment itself. >> so it's obviously a pretty normal understanding of what they do but if you assume that
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they were meant to use their own discretion than the vote was not required and it would be imposing equivocation. >> if you assume they have this discretion, you assume the answer to the case we would say they don't have that discretion at all. >> but you are assuming they answer in the same way, aren't you? it sort of depends on the case so i don't think that you can get rid of him so easily as they would like to. >> our position is that the constitution is silent on whether or not you can have electors representing how the public votes. that is inherent in this design and us we say in this design could be an additional qualification. >> thank you, counsel. justice gorsuch. >> i would like to continue the same line of questioning.
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if states enjoy plenary power to remove electors what would prohibit them from passing the ball to say that all have to vote for presidential candidates that support certain positions or who have done certain things or have visited the state? i understand your argument that is the states can't change the rules after the election and have to provide a notice. but they did it well in advance what would prohibit them from doing so in your view? >> i'm trying to square how this fits with the popular vote system because if you give people the power to vote and they exercise the power, then the argument is you count their vote. what i believe he would be
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getting out a is a preclearance process where you have to be clear what could be on the ballot before people can vote on them. >> you indicated it would be fine for people that have an advisory vote for those two then make the final decision. why couldn't you also have a system in which they provided advice and certain parameters set by the legislature? >> i think that is the same context i had in mind basically you would give an advisory vote and after-the-fact -- >> they've been alerted prior to the fact. i understand your point. in advance they been notified that they are free to provide advice to the electors whatever the number may be.
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the advice though is going to be bounded and there are certain things they have to do because the legislature says to abide by or be removed and again as a presidential candidate visited the state and has taken this or that position that he or she turned over their tax returns, whatever the position may be, it is a bounded choice and this is just another which prohibits the state from doing that? >> in this situation som, the se can have limitations as long as they comply with other constitutional provisions. >> the requirement to visit the state i don't believe clearly violates any constitutional provision. the tax return issue we noted raises the question that could be a real concern and -- >> it's who they can vote for.
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is that the qualification problem ia qualification proble? >> if it would be because if you told them vote for whatever it would be a concern as you could be adding a new qualification and thereby disqualify somebody from being president for the constitution. >> what about political positions or use a the state is permissible in your view. >> i don't see off the top of my head any constitutional constraint that would address that issue. after this it is plenary or exclusive as the court said. the state can oversee and remove those who don't follow requirements the state deems appropriate. >> thank you, counsel. justice. >> thank you chief justice. general, what is the purpose of having electors?
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>> when they are set up in the constitutional design, that allows for states to make a choice. they can either vote as proxy voters on behalf of the public as we do here in colorado or they can be free agents by having the structure uniform across the several states to give the ability to choose which model they want. >> but if that were the design, why not just leave it to the states as opposed to going through these details about how they are supposed to operate. as you know justice jackson and gray looking at that history said no one faithful to the history can deny the plan contemplated was that they would be free agents exercising an independent and nonpartisan judgment for the people best qualified for the nation's highest offices.
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so, that and why is not a choice but actually requirement that the states did this kind of independence, free-agent status. and why go through all the details if it's the way? >> i guess i'm asking you more details as they have these designs close to what justice jackson articulates and where you hang your hat. >> is the delegation of the authority to the states. james madison said the electoral college was all about giving the states authority to oversee presidential elections as the sulfate and as the majority noted, contemporaries of the founders did indeed see the proxy voters on behalf of the
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public and that was absolutely the backdrop to the amendment so i would also point to the amendment as effectively confirming and accepting the fact they can be and indeed most often or proxy voters, not free agents. >> your honor, there were a series of compromises between separating powers, between the states and federal government and between the state. this was one of those compromises that was reached at the final days of the constitutional convention. >> thank you, counsel. you have a minute to wrap up if you like. >> yes, mr. chief justice. as we noted, it's all about state authority. and on the theory of my friends on the other side, states have
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no authority even to remove the electors short of a full criminal trial. they gave the states the authority and expected them to exercise it in ways that were sound. that's what has been the histoy of these elections and we urge the decision to be reversed. >> thank you, counsel. >> mr. chief justice, may i please the court. this is about a trade-off between flexibility and rigidity. the states or was to will is tod rigidity could come at a steep cost. this law has no exception. if a candidate dies between the popular vote and vote of the electors, there is no exception. if the candidate has a stroke there is no exception. if there is widely recognized by three by the candidate, no exception. if there will be a in the electoral vote and deadline, no exception. they vote for the winner of the popular vote in the state for while there is no order, that is
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the only option. but rigidity has no place in the constitutional universe. if something goes awry in this or another, the framers thought they could vote with discretion and it's both amendment didn't change that. more recently the 20th amendment when they analyzed these contingencies and recognized even 150 years after the fact that they still had the discretion and could and should use it in the case. this shows given the current system of this election by an electoral college there must be times when only those artist placed to act in the country. they have a problem with the idea of the electoral college and want to write it out. perhaps we would be better off because of the months long process of the presidential selection presents a risk of
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instability no matter who wins the case but until we have an article five amendment, the vote of presidential electors isn't going away. to make sure the system we have works, given the constitution we have now, when they do vote by ballot they must be permitted to do so with discretion. >> thank you, counsel. i will begin by asking you the flip side of the question. is there anything sad with which you disagree? >> no, your honor. we filed an opening brief and i will sign onto exactly what he said in the first hour. >> you gave a number of examples and situations that have gone awry and there was no way to take account of them but i'm not sure your physician has any limits either. what are the limits to your
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physician? >> the limits, your honor, is that they must be permitted in the discussion. there is a choice. there's always the possibility of bribery, always the possibility of corruption and they consider this in the hands of a group of presidential electors that were appointed. >> i take your answer to mean they must be allowed to vote in the discretion that you do not have any limits. >> there are no limits in that voting by ballot so long as it is for the 12 amendment they say they must vote for a person. >> of course they have to vote for the person. >> your honor, congress concluded that. i'm sorry if i was unclear.
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that is the situation i meant those are the limits of the situation. there is a state can absolutely discriminate between all kinds of people and they do on the basis of the political party that once the vote begins, the vote by ballot is the electors. >> that is the same description that senators have come representatives, congressional electors. they are elected officials and have the same description. >> that sounds pretty limitless to me. let's say one insists they signed a contract and they will vote if we win the popular vote you will vote for the party's candidate and if you don't there will be liquidated damages of a
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thousand dollars and they break that contract and vote for the other individual even though the individual didn't win the popular vote. cannot contractor will both amet be enforced by the state? >> not legally, no, your honor and that shouldn't be surprising because it is the same prohibition that applies to the congressional who cannot sell their votes even though as a condition of participating in a primary coming up beside his cases extensively, you can force regular voters to take pledges and oath to support a party, you just can't cross the line and enforce them. >> thank you, counsel. justice thomas. >> thank you, mr. chief justice. counsel, you mentioned senators are free to vote or members of the house of representatives, but there's some degree of accountability for them when
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they vote in a particular way. what is the accountability here for an electorate who strays from what is expected? >> there are several forms of accountability. first is the selection process because they are 40 people and the states are selected and from there after the vote they can be kicked out of the political party and if they cannot win an election they can have negative political consequences and thatt is the same thing with senators they do have accountability that comes six years later so if a u.s. senator promises to support only low taxes and then at every opportunity raises taxes that's the nature of political discussion. >> but there's also accountability within the senate and as for his removal from
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office. but you are saying those other forms of accountability are not available. >> they are, your honor. there's absolutely party discretion and meetings like any other representative body and just to quibble slightly with what you said in terms of removal of a senator there is no precedent that we found of a u.s. senator being removed perhaps even i am appointing governor on the basis of the road. certainly some sort of criminal misconduct on the basis of the vote and that is the same analogy. >> let's say you mentioned with respect to the state that the state, an actor or someone dies, the system is so rigid that you can't make changes because of
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the death of the candidate. but on your side as the chief justice eluded to, you have a similar problem because the electorate that promised to vote for the winning candidate could suddenly say i'm going to vote for a [inaudible] and you are saying under your system you can't do anything about that. >> your honor, there is something to be done because that would be the vote for a morning person no matter how big a fan people are, that said i think the important point is the framers hashed out these concerns. they hashed it out in philadelphia in 1787. they understood the stakes and said among these competing hypotheticals, electors are best placed to make the selection and that has not changed. >> thank you, counsel.
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justice ginsburg. >> i don't understand your point about rigidity because as i understand some of th, the statn is if the states have a choice, they can say electors have been independent vote or they could say they must follow the party's orders to. so the states are being given leeway to do with one way or the other way. why do you say that it's rigid when it seems to me that it could be described as supple because the states could have it either way backs >> justice ginsburg states do have great flexibility as you mentioned in choosing the mode and method of appointment but
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the walls that they've written and those that were enforced against my client are very rigid in the sense that there are no exceptions and that conflicts with the supposition that every single congress that has looked at the issue of presidential selection assumed it exists when the congress was drafting the 20th amendment that is the key oversight of the law but even down to the modern era when congress was debating the 24th amendment for instance for the taxes and noted it needed to guard them for the presidential electors because they still exist in the system so that is the rigidity that i'm talking about, justice ginsburg. >> standing question [inaudible]
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>> they gave up an additional $5 of salary i would like to correct the record where they said there is no salary, the colorado statute provides electors with $5. but so do state's financial they've are small but constitutionally and personally they are large and sufficient to. >> thank you. >> justice breyer. >> to go back to the technical point, you brought a suit under 1983 against the state. ..
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jason: so the only way the court should look at that is u.s. fitness jurisdictional. i will give the two sides. >> any two people, plaintiff and defendant, who would like issue decided by us, simply have to wait enough matters so that it has to come before us. it's not jurisdictional. we interpret that statues differently. they do whatever they have to do. what are we supposed to do that. >> your honor, i think this case is one that courts surely, individually brought against the secretary of state three compromise that involve the plaintiffs giving up the right to her attorney fees and other combinations. it was somewhat reframed in order to be brought against the department of state . on just
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point the court to cut out the 53 - 70. >> one one of the kept question, i take it waiting to ask about other terms of accountability. for at least 125 years, the work selectors from time to time. and congress usually counted them and sometimes adopt. for example in this case and did not. so is that not the power that the congress has to make certain that that electric, does not cause trouble. >> justice breyer. >> you did not mention it so you don't probably think it is pretty. >> i think justice breyer, to be clear, is a poor source site. the greenlee bus that were injected. >> i don't know what you don't consider this significance. i would like you to answer to
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that. >> your honor, just understand, the three that were rejected by congress were actually full. they were electors that work elected. a student doesn't congress' power, through the section 15, as the constitution, does that act as a significant check on the and a does it not. >> it can your honor, the courts and congress have never interpreted the boat to be regularly given. and the congress possibly has the power to reject this under certain circumstances but we know it is never done it though. in this relate both the ones that were rejected, they were deceased and in the 63 votes, they voted for other people who work some since those were all counted. >> we have to interpret the constitution to mean what it
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means regardless of the consequences. i am interested in at least an understanding what the consequences of your position would be. we are told by experts on elections that the consequences would be potentially, chaotic and in particular, of the professors reef. and experts on elections that acceptance of your position, would mean that after election where the apparent outcome based on the popular vote is a small margin of victory for one candidate and there would be conservative campaigns to change that result by influencing a few electors that could be achieved by influence and just a few electors. that is just one of the consequences. and just in the fact, in most states the electors are not even listed on the the balance pretty and therefore the voters have no
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way of trying to ensure that the electors who were chosen are electors who really will honor the wishes of the voters. so they really deny that this is where your argument would lead. >> we do deny it. attorney general, in the response to prior question on the same issue noted that there had been campaigns are ready to affect electors. he mentioned 1876, the famous election but in fact robert alexander, eight site on the last page, alexander's research showed there have been concerning campaigns in 2016, and 10000 and beyond. some 20 percent of electors, have contemplated by switching the boat and then 100 percent have been contacted. statement is there a greater chance.
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didn't sir wesley support this effort in 2016 . student your honor, he has been representing these electors from the beginning in 2016. >> that was not my question didn't he advocate that some electors change their votes for the purpose of changing the outcome of the 2016 election pretty. >> your honor, i believe that he supported the legal discretion selectors had they were here today arguing for. and the reason is this in the constitution, but be, that going back to that chaos, the center has always felt that are held and we know that in 18 states today, have no such laws. the states are not about to say that there's some kind of constitutional requirement that they implement them. in fact, they say the reverse. this is a feature read. >> do they have any power to
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remove electors. he states. i cannot think of any. our government office holder who cannot be removed from office. statement yes they do have some power to remove electors but not within that interferes with the ballot. >> what is there a limit to the power to remove. >> again, then interference with the cord functions so electric does not show up to vote, the states represented, is our view that's impossible to remove it place electric. that is not true. the becomes a vacancy. the electric contacted spilled and history sake they can and will be field. >> that electric can they be removed for robbery. convictions by proof beyond reasonable doubt. when the electors need to vote. before that time. >> no, we don't think so your
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honor. they cannot be removed for the position of bribery. or a mere whisper of it. they have to be removed for proof of it. >> a member of congress cannot be removed from office by two thirds vote without a criminal conviction. >> the congress certainly has power to remove must go through a full process. i took your honor to be asking about this instantaneous removal on one official. one single state official. they will make a decision to kick someone out based on rumor. no, that would be inappropriate for any sort of elected official. >> thank you castl. >> suppose a look at doesn't say anything about the things here . mostly i just read it the
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constitution is silent. which i then do and why. >> justice kagan, in that case i think the original understanding was control. and we think there is clearly in order to turn to that with original understanding was control because it is so clear and color and it doesn't even necessarily challenge it but the original expectation. >> sorry, do you mean prior to ratification? >> pretty quickly, even if you are right, from the first, that there were these pledges and there's never been a substantial amount or number of electors. so i would think that the history both at the time and since, would cut against you. no? >> note justice kagan because i quibble is not with the pledges.
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and it is not with the idea of party control. the idea is the consorts with of the vote. it is with what a here removing in the letter predict who actually votes. he actually presented a vote. an attempt to vote in places that was rejected. that is novel. it has only happened in 2016. despite the party control of the selection process. >> what if i said if i think the best thing to do is to leave it to the states. to not impose any constitutional requirements on them . >> your honor, i would push against it because i don't think here in this case . >> with that it hypothetical. if i just not think that there is not enough. to provide an answer to the question and there are all the states knowing what colorado is
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doing. why not just leave it to them. >> because your honor, when justice kagan, when you sit there all of the states doing what colorado is doing, it will actually have never been the state what colorado is doing. that was 220 years of unbroken history. i think that speaks very loudly if your honor is concerned about how to interpret that silence. if you're ready to move on, continued to make another point. >> that was directed to justice kagan. >> i'm done okay. >> counsel, suppose mr. baca had asked congress to count his vote. and congress decided to do so. we be here. >> yes you and your honor. there is no mechanism for mr. baca to ask congress to count his vote rated under the electric, the state has pointed
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to any mechanism other than perhaps making a phone call to a senator. >> let's a posse had asked congress and the supposed congress had agreed to count his vote. that is my hypothetical. would we be here pretty. >> if congress had counted his vote instead of the replacement, then no then perhaps not because he would not have lost the office. he didn't get a chance to vote for vice president either. but assuming that he had a valid or about fully cast. then no, we would probably not be here . >> he did not seek or try to ask congress to vote. did he. >> he did not. there is no mechanism for it in the state has not pointed to one. >> in the damage he states, is $6. is that right. >> it is endless, it is a 1 dollar pretty.
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>> so it's 1 dollar nominal damages. why should we exercise our discretion when the nominal damages are 1 dollar pretty he did not seek congress to count his vote as you point out. so i'm unclear whether there is a mechanism to do so. we have a cause of action that does not exist and we are asked to be overlooked because of this stipulation by parties. why is that sort of a manufactured litigation this court should decline or should bother with when refusing the discussion. >> because once there is jurisdiction and again, all emphasized that the question of whether - >> excuse me, but this court has discretion over what to entertain. and it also has some authority to exercise the importance of the adversarial process treated as proper uses.
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>> it does and i think the argument today is highly adversarial on understanding the merits in the discussion here is because there was a conflict in the lower courts on an important issue pretty and the unique chance that this court has to decide this issue a presidential election outside of the very contested context of an actively fought president election. so i think you're explaining expression not jurisdiction. it is well exercise here and again colorado does not contested. >> thank you. >> justice kavanaugh. >> thank you chief justice and good afternoon. how if it all, should that political parties affect our analysis of this case including the 12 commitment interacts with article two. >> justice kavanaugh, the political parties should provide the context for nominating electors and the appointment of
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electors. the fact that there are political parties now and were emerging political parties in 18 oh three the work of doctor remains in the constitution. and electors are people who vote and all of those words, and all of the structural principles may not today's vote is with discretion. statement then justice kagan, noted that a question about what to do with the text is silent and we talked about various things that could fill the gap there including the states authority. another of course under our historical practice of case law, under cases like canning and many others that we look to historical practices. what is your strongest point on why the historical practice favors you rather than favoring the other side.
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>> justice kavanaugh, in addition to historical practice that we are already discussing, also point the course to the history of constitutional amendment that have been introduced to truth try to precisely to eliminate the lector discretion than everyone who is introducing the amendment, seemed to exist. also point out in her brief, this starts in 18 oh one with no less than thomas jefferson saying, maybe we should get rid of the office of electors. they can only cause troubles. in a continuous for 20 years such men as renter despite thomas apartment, and essentially every single congress. those amendments were not meaningful in the people who thought we ought to eliminate the electric discretion were not writing on a slate, writing knowing there was an electric discretion pretty that would be a lot of waste of oxygen if there was already a way to eliminate electric discretion if they do not have it in the first place. statement take you very much
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writing. >> two minutes for a wrap up if you like. >> just to conclude briefly, the court knows intervention here was extraordinary and unprecedented print enough colorado was permitted to undo the home and check the has been deep into the system a presidential selection, there really could be in an outcome. by contrast, most electorates have been free and the selections and here we are today your honor. indeed, electors became legal discretions 19 states in a decision from this court won't change that. so the question for this court is whether to approve of the state novel intervention. in his novel rated and be left wondering, how the states overly rigid interpretation could go haywire as we discussed other than's sermo keep faith with the constitution until mid to get and direct election. acknowledging both sides here, had a vision of presidential
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selection that is imperfect rated of her various checks and nonsense and separations, that our constitution amendments happen into the constitution, all of those should be given a role in our constitutional universe. all of that is left up to the electric discussion. thank you mr. chief justice. >> two minutes for rebuttal. >> let me offer three points in response into closing thoughts predict the payment or nonpayment of the per diem was never before alleged in a reported nonpayment is not an record. second, nominal images, prior cases of smith and berg, did not a court standing on nominal damages alone. whether there is a national personal injury. second, just important point about congressional, removal in case of primary, it is worth noting there is a prescribed removal process for senators. when the case of electors, there
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is no such process. which means, this course default rule controls. the power to remove is incident to the power to appoint pretty similar source not think that this is the first time we've seen in the lector violated state body law. up until now, including 2016 election, the voice congress differ on count votes that has been transmitted by the states. to closing thoughts predict during the course of this entire litigation, and the argument today, my friends on the upside, failed to offer any viable theory on how to address the spectacle of a bribe electric and electrical events or one who have perpetrated the bait and switch on the people of the state. colorado's, pledge requirement addresses all such terms. after over two or three years of constitutional, my friends on the inside were talked out our nations state senator model of electoral accountability in favor of a treacherous
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experiment and weird this court to reject this dangerous time on and avoid a potential constitutional crisis by reversing the tenth circuit ju >> c-span friends, welcome to the final installment of the national constitution center and sees them's wrapup of the remarkable two weeks we just experienced together. for the first time in american history, the supreme court has been broadcasting live oral arguments in the national constitutional center and c-span has been here with you to convene the arguments. america's leading thinkers on both sides of the case to be
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