tv Supreme Court Oral Argument in Chiafalo v. Washington CSPAN May 13, 2020 10:00am-11:18am EDT
>> the honorable, the chief justice and associate justices of the supreme court of the united states. all persons having business before the honorable, the supreme court of the united states are admonished to give their attention for the court is now sitting. god save the united states and this honorable court. will justice roberts: we hear argument first this morning andase 19-465, chiafalo others versus the state of washington. may it please this
court. the question is straightforward. to the states have the power to control, through law how an elector may vote? the do not, the words of constitution against the background of the framers naked clear that the states have no such power. what is also -- make it clear that the states have no such power. what is also clear is that washington does not like the design. votes cast that the are not, as the constitution expressly describes them, their votes, but instead of the votes of the state, article 2 effectively gives the states the power to cast votes for president in such manner as the legislature thereof may direct. the actual article 2 does not give the states the power to
cast votes. it gives the states the power to appoint electors. the actual electors that the constitution creates, have a legal discretion, as every unfettereds, not an discretion, to the contrary, it is a completely fettered discretion, fettered by moral and political obligations, not legal constraints. to vetton's alternative discretion in citizens may be a but the question for this court is not which plan would be better. the question is which plan is the constitution now? the answer to that question is clear in the constitution's text. butstates get to a point, they appoint electors who are then privileged to cast their votes without regulation by the state.
chief justice roberts: do you saying no find- is simply requiring a perspective elector to take a pledge ok in your view? mr. lessig: absolutely. having nounderstood, legal obligation, but a moral obligation, is perfectly fine as part of the appointment power of the state. so, thestice roberts: addition of a sanction makes no difference? mr. lessig: the sanction makes all the difference, so long as there is not a legal sanction and a pledge is appropriate. context of the speech and debate clause. you can't punish somebody for a vote in congress, but there is nothing inconsistent with the speech and debate club in asking a member to make a pledge. states, right now, ask a member
to make a pledge as a condition of being a party member. chief justice roberts: if there were a fine of one dollar, you would say that violates the constitution, but if it is simply a pledge, no violation at all? mr. lessig: that's right because of fine is a legal obligation. it crosses the line because the state has no such power to impose such an obligation through law. chief justice roberts: your argument is not that the sanction must have coercive effect. simply, if it is only a symbolic requirement, it still violates the law? mr. lessig: no. it is symbolic requirement, it is an important 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. chief justice roberts: so by
legally coercive, do you mean something different than simply coercive? in other words, if you add one dollar, that becomes legally coercive? mr. lessig: that's right. just like with the speech and debate clause. if you fine a congressperson one dollar for their vote on the floor of congress, that violates the speech and debate clause, but there is no problem with saying to that congressperson, to be a member of the republican party, you must support the platform of the republican party. chief justice roberts: under your view, there would be no way to enforce the popular vote referendum? mr. lessig: the national popular vote compact, is that what you mean? chief justice roberts: right. assuming that gathers enough support and becomes law, they would be no way to enforce it? mr. lessig: that obligation requires the states to pick a slate of electors that fits with the winner of the popular vote.
those electors would have the same legal discretion we believe any elector has. if there is a national popular vote contact, the number of electors would be so significant it would be very hard to imagine any discretion affecting the ultimate result. chief justice roberts: thank you, counsel. justice thomas? justice thomas: thank you. 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? mr. lessig: i think you can ask the question both ways and it is the same answer. the only argument the state has made in washington, in the washington case, is an argument -- the question is whether the appointment clause gives them the power to control, and we believe they do not.
as an elector given the obligation to vote by valid, does that --ballot, does that obligation entail a protection from legal operation. we believe it does. we believe it creates an immunity from being punished for how one votes. justice thomas: when you make your federal function argument, does that depend in part on your view that the elector has discretion? the federal function establishes the discretion, your honor. it is exactly the same as in the whereof hock and lesser the question was a state legislator or's discretion -- legislator's discretion to vote on an amendment. it works for the people of the state, subject to the constitution of the state. oaxacan lesser established was ist that states legislature
free of the imposition of the state either through referendum or on the constitution itself, when the legislator votes on an article of the amendment. that is the same amendment we think a presidential elector has. justice thomas: how do we determine what the contours of the federal function would be? mr. lessig: i would look just to the text. is aederal function function in casting a ballot as the 12th amendment describes and any additional steps it requires, which is to name the president and vice president. which thee function constitution gives to electors to stage from the power to appoint. justice thomas: is the 12th amendment mentioned discretion? mr. lessig: no.
the 12th amendment mentions the course, byf requiring a list of the people implies there is more than one person that can be voted for. it 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. that is nowhere in the 12th amendment. that state doesn't appear except to name where the electors will meet. justice thomas: can the state remove someone -- i just wonder what limits, what authority the state has. can the state remove someone who openly solicits payments for his or her vote? -- lessig: you can certainly of course, this court has said limit state can certainly
corruption. justice thomas: where does the authority come from? mr. lessig: burroughs versus the united states found it inherent in the federal power to be able to protect federal elections from corruption. in fitzgerald versus green, they saw it as incidental to the power to appoint electors to be able to assure the election, in that case, the vote by the people, was consistent with law. either of those could create the authority to avoid corruption. of course, corruption, like bribery, is independent of the vote. you don't need to police the vote to be able to police corruption, just as with the speech and debate clause, you can convict a congressperson's bribery, even though it includes the vote that might have occurred. chief justice roberts: justice ginsburg? wasice ginsburg: i surprised at the answer you gave to the chief about ray. i would have thought that under discretionte elected
view, ray would have come out differently under your theory. mr. lessig: no. we think justice jackson was completely right about the original understanding and we think justice jackson was completely wrong about what followed from that original understanding. the framers didn't believe that electors would exercise independent judgment, 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 discretion any particular way, but our constitution didn't. the question in ray was whether the power -- state had the power to discriminate on the basis of political affiliation and loyalty when picking electors. after the 12th amendment, we believe that is perfectly obvious. they have the power because that is the function of the electoral college is has come to occupy.
justice ginsburg: it is somewhat hard to understand the concept of something i am pledge bound to do. i have made a promise to do something. unenforceable. mr. lessig: i understand, your honor, and it is 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 pledge has been considered anything beyond a moral obligation. one case where texas requires candidates to pledge to support the candidate of the democratic party. that was upheld explicitly on the ground. that was simply a moral obligation. we can see in the context of congress again. there is no problem with requiring a member of the republican party to pledge to support the republican party as a condition of being a candidate for congress.
we understand the speech and debate clause to say that you cannot punish them for their vote. the pledge is not inconsistent with the speech and oblate clause. it is perfectly -- speech and debate clause. it is consistent because a moral obligation. justice ginsburg: thank you. chief justice roberts: justice breyer? justice breyer: good morning. state can appoint people, requirement that they be person -- permanent residents of the state. that is all right, isn't it? mr. lessig: of course. justice breyer: and then, can they say you must be a permanent resident at the time that you cast your vote? mr. lessig: yes. and then what: -- and who is mr. smith then what happens if mr. smith 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. could the state also say, in case that happens, we have an alternate who will cast a vote? mr. lessig: yes, we believe they can. justice breyer: there is a 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. mr. lessig: 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 it can set the day on which the vote is cast. we believe incidental to the appointment of power is to
appeal the power of the state to assure there is an elector there that will perform the function, the federal function of balloting. 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 some of the -- someone voted properly. justice breyer: if, in fact, he changes his residence 10 minutes casts hiscast his -- vote, then you could remove him. -- when in fact, he actually cast a vote. surely someone who cast a vote for jones into the black has, in fact, changed his mind tenant before. could you not remove him for that change of mind? mr. lessig: no, because the pledge is a pledge made prior to
the appointment. justice breyer: it is not a pledge in my hypothetical. it is a requirement that he, in fact, cast -- not cast his vote, but be a person willing to cast his vote for mr. jones, the 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. mr. lessig: but again, the constitution gives the states no power to regulate the boat. -- vote. they have the power to appoint. ray said they can say you must make a pledge to support. the party at the time -- the party. at the time my clients made the pledge, they absolutely pledged to vote for the nominee. chief justice roberts: justice alito? justice alito?
justice alito: yes. my question is similar to justice breyer's. arrivedan elector is 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 the power -- person who shows up is not engaged in criminal activity. it is difficult to imagine how that plays out because to claim someone has been bribed is a charge and needs to be proven. we believe that is going to be a difficulty with the bribery, but let's remember that the framers expressly considered this problem. expressly said the reason to not have electors is
that they could be bribed. what the framers saw is that there could be two risks, the risk of bribery, but also the risk of corruption -- justice alito: your argument must be either that the electors cannot be removed by the state. the state says at least some removal power goes along with the employment -- appointment power. i think your argument has to be, they can't be removed or there are at least some circumstances in which they can be. if there are some circumstances in which they can be removed, such as when the elector has why would the violation of a pledge not be one of those circumstances? honor, we haver said the bride is different from a pledge because the bribed is proven -- bribe is proven separately from how one votes. we recognize there is a capacity to regulate bribery.
question is perfectly framed because i do want to assert that there is no power to remove prior to the vote. onepower that comes from article is the power to fill a vacancy once the vacancy occurs. it is not the power to create a vacancy. that is the structure that the constitution establishes as well. justice alito: so the state cannot concede by removing an elector who has been bribed? mr. lessig: yes, unless the bribery statute makes as a penalty removal from office and there is a conviction prior to the actual time at which the vote has been taken. justice alito: one other question. those who disagree with your argument say that it would lead to chaos. 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, if 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 electors. period ofd be a long uncertainty about who the next president was going to be. do you deny that that is a good possibility if your argument prevails? mr. lessig: we deny it is a good possibility, we don't deny it is a possibility. we believe there are risks on either side which is a good reason to avoid the constitutional interpretation. we agree that the possibility exists that you could flip electors. look historically at the number of times that could have mattered. in the history of electors, there has been one elector out cast who,507 votes have switched parties against the majority party in a way that
could have mattered. the first time it happened was 1976. chief justice roberts: justice sotomayor? justice sotomayor: counsel, you compare the electoral college to a jury arguing they are structurally similar under the constitution. you can't remove a juror because of his or her vote. but if that is true, i don't see how that helps you. a juror makes all sorts of pleasures -- pledges, to be impartial, not to discuss the case, not to research the case with the party, to tell the truth.yet, if a juror is selected, it violates one of those pledges. save a juror talks about the case with the other jury members. empowered to remove
that juror. electort a presidential subject to being removed in the same way? pledge.ade a particular different than remaining impartial, but he has told the people who appointed him, i will vote in this particular way. you call it morally, commit thyself. so why isn't that any different than a juror who says, i am not going to do this, and then does it, and a judge can remove him? mr. lessig: your honor, you have identified the core immunity that a juror has. that is the immunity in the vote to convict or not. is immunity that cannot be regulated or punished or fined according to the court within the state. there are other obligations, you
are right, that you can be held to account for. we think that is perfectly parallel to the presidential elector. they have immunity in his or her vote. of course, sitting in the elector room, he can't cause a disturbance, can't threaten somebody with a weapon, can't engage in any number of criminal activities that might interfere with the opportunity to perform the duty. there is a particular immunity because the immunity to vote is immunity from penalty for vote just as the speech and debate clause cases have made clear. justice sotomayor: you rely a lot on history in your argument, but doesn't mcpherson undermine your position very directly, just like ray does in some extents? in those cases, the court made clear that whatever the framers expected, and here, you make a the argument that some of
framers originally expected electors to have discretion. practice offered a practical interpretation of the constitution. that is what ray said. mcpherson said experience soon mistreated that the electors were chosen simply to register the will of the appointing state. doesn't the same principle undermine whatever you think some of the framers expected, the historical practice at least since the 12 amendment, has shown that states have imposed not just pledges, but have imposed fines and some removal of electors who are faithless? mr. lessig: first, no state has ever, prior to 2016, imposed a fine to remove an elector. 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. justicestice roberts: kagan? justice kagan: let me ask about those words. argument is determined on certain words. usually, we think of those terms as involving some toys, but not necessarily. caste are electors, people at times whenlots there is no choice. hask of somebody who pledged himself to vote because another person is voting on other way.
mr. lessig: the best way to understand these words, the best dictionary is the constitution itself. speaks oftution elector into context. toicle 1 speaks congressional electors. we believe the freedom of congressional electors is exactly the freedom of presidential electors. we understand the authority of this court to establish that the office, as justice kennedy put elector,ffice of the meaning the congressional elector, is created by the constitution and is free from constraint, either private or state. it is the same sense of elector that the constitution used. we meanics said, someone who has freedom and
description, -- discretion, but by article 2, we mean what would be the soviet union description of elector. we are not saying it is impossible to imagine this. we are saying the ordinary expected meaning of these words would have supported the discretion the framers expected -- justice kagan: if that is right, if you're reading is very deeply contextual, shouldn't we look to what happened in the very first elections under the constitution where immediately,, right away electors associate themselves with political parties, pledged their votes ahead of time and it is now practice that has continued for over 200 years. byyou're reading is demanded dictionaries, but demanded by context in history, doesn't the context in history suggest the opposite? we lessig: your honor, believe the context and history supports the idea that electors were to pledge themselves. we are not saying the
constitution required them to be hamilton's philosophers. our claim is that the discretion they created in the office of electors survived. firstt 1796, where the faithless election switches sides. this is noticed and objected to and in 1800, that election also was a complicated -- complicated by the failure of electors to do what they were expected to. j -- one person to the jefferson we should eliminate electors. chief justice roberts: justice gorsuch? justice gorsuch: could a state ask an elector to make a sworn statement as to his present intention to vote for a particular candidate make the pledge an oath? mr. lessig: yes. justice gorsuch: could a state leader prosecute the elector for perjury if that statement, under
oath, if there is evidence it was false statement? mr. lessig: in principle, absolutely. we think and practice, that would be just like a judge making a promise to a senate committee prior to a confirmation. that would be incredible difficult to imagine enforcing would bethat retaliatory against a particular elector. justice gorsuch: could a state say we will pay her per diem only if you carry out your promise to vote in a particular way that you have pledged initially? mr. lessig: no, that is what washington's new law does. that is a penalty as well. justice gorsuch: why couldn't it do that if it can do the other things? mr. lessig: again, the difference between a legal consequence or legal penalty based on your judgment, your vote, federal function of balloting which is free of state
control, and the other into powers relative to appointment. other influential relative to appointment. estate isrsuch: simply saying we will pay your lunch and travel and perdiem if you conform to your pledge, your under oath. that is not permissible, but it is permissible to convict an electric for perjury -- electorate for perjury. mr. lessig: that is right because perjury involves a false statement at the time the pledge is made. in our case, are electors absolutely intended to vote for hillary clinton. justice gorsuch: i'm not asking about your client. just stick to the hike -- hypothetical place. mr. lessig: but the hypothetical imagines someone has committed a criminal act.
on the basis of the criminal act, in theory, they could be punished. the difference between an elector who gets compensated based on the vote or not is a different driven by the substance of the constitution discretion that electors are given. the federal function invalid and the right to vote. statee gorsuch: could the remove that individual and not count his vote? honor, the your perjury example did not allow them to remove the individual. what we know in the context of other areas where votes have been tainted, for example, a bribery conviction, if the vote is not counted, that is just the consequence of the separation -- justice gorsuch: you indicated in earlier questions that you thought it was fine for a bribed elector to be removed from office prior to voting. mr. lessig: i said that a few convict a person prior to the actual voting, then you could
remove -- justice gorsuch: the same would be true for perjury? mr. lessig: if you can succeed in the conviction. the perjury requires a false statement. chief justice roberts: thank you, counsel. justice kavanaugh? morning.avanaugh: good 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 is a close call or tiebreaker, that we shouldn't facilitate or create chaos. you answered and said it hasn't happened, but we have to look forward. just being realistic, judges are going to worry about chaos. what do you want to say about that? mr. lessig: it is a good thing to consider, your honor. what we have said is yes on the one side.
you might worry there is increased risk of chaos if electors have the discretion they believe they have always had. we have suggested the likelihood that requires electors where the loyal of the loyal to band together in dozens or three dozen and switch sides. the likelihood of that is extremely small. what we have also said is that there is 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. happens, laws like washington and colorado band the exercise of discretion, then votes from those electorates could be wasted -- electors could be wasted. that could flip the result, also unexpected, also potentially chaos.g there is chaos both ways and the number of times we have had a
candidate die is actually twice as frequently as we have had electors switch their vote and vote for somebody from the other side. justice kavanaugh: i want to get another question. you said this appropriately as innocence, the states versus the electors, in some sense. to't it also appropriate think of the voters versus the electors and that your position would disenfranchise in the state? in our case, the action of the electors was to further enfranchise. ,ase bang as a general theory what in your position potentially lead to that? mr. lessig: it is potentially true, that's right. justice kavanaugh: the question here is not whether the constitution requires the states to bind electors, it is whether the constitution permits states to bind electors.
on that question, why doesn't the 10th amendment, where the state's pre-existing authority come in? mr. lessig: the state doesn't devoid the 10th amendment, but if it did, it would fail. could point to traditions that allowed the state to exercise the power that they wanted to exercise. there is no tradition in america, maybe in the soviet union, but not in america, of a government exercising control over a voter, over an elector. the power doesn't exist, therefore, it is not a question of if it was taken away by the federal government. it wasn't there before. thankjustice roberts: you, you can take a minute to wrap up if you would like. mr. lessig: thank you. the question here has got to both be the constitutional and
pragmatic. the constitutional question is simply a question of whether there is a path -- power in the state which comes from the power to appoint, and there isn't. it is also a question of whether the electors, the same sort of electors that article one creates, have a discretion. sameiscretion is the that congress people have when they exercise their judgment, not to be punished at all under the principles of the speech and debate clause. there is also a question we acknowledge of the risks. this court should do what it can do, which is to interpret the constitution as the constitution is written and it has not been amended. thank you. chief justice roberts: thank you, counsel. purcell? thank you.cell: the constitution gives states the power to appoint electors.
that power has always included the power to set appointments showing up for the electoral college meeting. 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 foundation in ray. dispute here is whether states can enforce this condition or any other valid condition of appointment. conditioners essay no, states can -- say no but states cannot approve electors for any reason. even if they lied about their eligible lead to serve in the first place or refuse to show up for the meeting of the electoral college. that is not the law as petitioners now seem to acknowledge. original understanding, historical practice and this
courts precedent all show that states can enforce appointment like those here. to believe want you this case creates a conflict between our country's practices in the framers intent. two stubborn facts refute their claim. the framers and their contemporaries clearly understood that states could remove or find electors after appointment. from even before the 12th amendment, many states had laws removing or finding electors for violating the conditions of their appointment, refuted getting a central premise for a petitioners claim. as this court recognized in ray and mcpherson, from the very first presidential election, states have been choosing electors specifically because they have promised to support a particular presidential candidate. this contradicts petitioner's claims that framers viewed the discretion as central and shows the quarrel is not just with our long-standing practice, it is .ith the framers themselves
chief justice roberts: could the legislature of point -- appoint whomever they want to be an elector? gen. purcell: there are certainly some limits on the discretion. other constitutional provisions, such as equal protection laws. in general, states have exclusive authority to appoint electors and set conditions of appointment. chief justice roberts: let's say they don't appoint electors in any way before the national vote, and then they select the electors they would like after that vote. is that all right? gen. purcell: i don't think that is all right. 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. the state legislature cannot override the will of the people by appointing electors to do
something different after the fact. to that, it would not be acceptable. the state does have the authority to enforce valid conditions of appointment such as requiring electors show up for the meeting of the electoral college. even that is unacceptable. sayingit seems they are that 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. absurd.just it is completely contrary to the historical record and leads to a dangerous consequence that there is a huge incentive under the other side's view for those who want to meddle in our presidential elections, whether it be a foreign power or wealthy individual to attempt to bribe or blackmail electors. it is 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. the stateice roberts:
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 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? gen. purcell: i think that raises the same challenge as your earlier hypothetical. while the legislature in the first instance has the power to set any condition that complies with the constitution, once the legislature has given the public the power to vote, they cannot override that vote consistent with the clause in this court's cases. your hypothetical pushed up against that principal. it is not just what commitment are you asking the electors to make, but what have you told the public? under the other side's theory,
the public role we currently think about the presidential is alln process irrelevant and always has been. it is purely advisory. chief justice roberts: all we have to do is tell the public that when it comes to electors, we are going to follow mr. lesig's view? gen. purcell: i don't understand the question. chief justice roberts: the question is, you are 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 -- excuse me, but the state has the discretion to replace them and the people know that, shouldn't that be enough? gen. purcell: the critical point is that if the condition is constitutional, then the condition can be enforced by rule -- removal or sanction just as it has been before 1800. if the condition is you have to
show up for the meeting of the electoral college, the state can enforce that. chief justice roberts: justice thomas? clarify,homas: is to 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 is constitutional, but beyond that, what else limits you? gen. purcell: i think those are meaningful limits. those are the limits this court has said that the power of states over appointment is exclusive. as i said, the equal protection clause imposes limits.
other provisions like the presidential qualifications clause impose limits such that states can't restrict electors choice of who they can vote for in a way that would violate the resident election because. other -- clause. valid anddition is constitutional, the condition can be enforced. that is our position. justice thomas: i guess that is why we are here. one other question. you thinksted in what and how you would define the functionthe federal concept? are purcell: i think there three crucial problems to the other side's federal function argument. the first is that it is not supported by the cases they cite. burroughs and ray mentioned that there is an interest in the conduct in elections, but they don't say or imply that the
supremacy clause restricts state authority over electors. second, the whole point of the federal function doctrine is to prevent state interference with actions of the federal government and federal officers. in this context, the federal government does not look the president. electors are not federal officers. the third point is that if they were right about the federal function idea, states never would have been able to remove or sanction electors for any reason. and yet, we see statutes from even before 1800 that provided for exactly that, removal or sanction of electors. those statues have always been -- a constitutional, under their statutes have always been unconstitutional under their theory. the state cannot remove or replace them even if they know the person is not going to show
up for the meeting of the electoral college, even though states have been doing that before 1800. i just don't understand how the other side's theory is at all consistent with the original understanding. it is not the original understanding. it is an academic theory that has never been put into practice. chief justice roberts: justice ginsburg? justice ginsburg: what do you make of the fact that powers have never failed to account an anomalous electoral vote? not once. it is always accepted. i think that highlights congress's view that they should divert to states. in every example the other side has given, the state had certified the votes as the state's votes. 2016, congress also counted votes from colorado and minnesota where the state replaced electors with electors who promised to vote as pledged ended.
congress counted those votes as well. what you see in the history is congress deferring to the state's designation of which electors are validly appointed by the state. justice ginsburg: thank you. chief justice roberts: justice breyer? would like you i --assume whether this is assume this is my argument. do only thing a state cannot is punish the elector for the way he actually cast his vote. as far as bribery laws are can -- concerned, there are plenty. as far as gratuities, all kinds of things. the only thing is the actual casting of the vote. 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. in the one case, congress refused to count votes, which were cast for the person who was promised, horace greeley. there is a mechanism in congress to protect catastrophe. votes, they count which they choose to count. the alternative is yours which is the 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 possibly, who, knows what they could pass as a requirement? what is your opinion about that? gen. purcell: there is a lot
there. i want to start by what can congress do? congress cannot solve this problem because congress cannot appoint an elector for estate. even if congress could reject a ballot -- if it found out the elector had been bribed, the state has lost that vote and cannot get it back. congress cannot appoint a new elector for the state. just rejecting the ballot might alter the outcome of the presidential election. the idea that congress can this after-the-fact is not true and it ignores the constitutional delegation of power to the states. turning to your other points, there is no -- an example i think helps illustrate why there is no constitutional difference between failing to show up and failing to keep her promise. imagine two electors who both do not like the nominee who eventually wins their party's
nomination and wins the general election. one says, i'm not going to show up for the meeting because i don't like this person. the other says i'm going to show up and vote for someone else. both have violated conditions of their appointment and can be removed and replaced by the state and there is no constitutional problem with that. justice breyer: there is a difference between the two. in the one case, your state is punishing the person for what he does before voting. and the other case, he is punishing him for the way he casts his vote. that is what i think the other side says is the one thing the state cannot do. gen. purcell: first of all, washington removes the person before they vote, just as colorado. there prior law did impose a fine for violating the condition of employment -- appointment. beforelook historically 1800, states have fines for violating conditions of
appointment. quite common for appointed officials at the state and federal level to potentially face consequences for voting in violation of a promise. for example, the united states ambassador to the u.n. certainly has a vote in the u.n. general assembly, but if they vote differently from how the president directs them, the president can sanction them or remove them. it is quite common with appointed officials that they can face consequences for voting differently than they promised. is ais what this straightforward example of. justice breyer: thank you very much. chief justice roberts: justice alito? justice alito: does the constitution impose any limits power to attach conditions to the appointment of an elector? gen. purcell: some. the ones i was referencing earlier. the state cannot impose
conditions of themselves such as race-based conditions. justice alito: what else? gen. purcell: as i said before, the state cannot impose conditions that would violate the qualifications clause. other constitutional limitations might come into play -- it is hard to imagine. our basic point is that if a condition is constitutional, and we know this condition is, that condition can be enforced. that is the key question, is the condition itself constitutional? justice alito: could estate require electors to cast their votes for a candidate chosen in a resolution passed by the state legislature after the popular vote is cast? gen. purcell: no. tot is what i was trying answer. 'sat would violate the public fundamental right to vote once they have been granted the right
by the state. justice alito: i didn't quite understand that answer. is estate obligated to choose electors through popular vote? gen. purcell: no. in the early days, the legislature can choose rightly if it wants. in that circumstance, the legislature can impose and enforce a pledge. 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. as this court has said in a number of cases. the legislature cannot override that vote after-the-fact. justice alito: why is that so? could washington say we are going to choose a 12 wise people to be our electors. 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? gen. purcell: if the legislature made clear that the public vote , i thinkely advisory that presents a tough question, but i think they probably could do that. the key compromise of the constitution was to leave it to states to decide exactly what authority they would have. states were free to decide to leave authority with elections. 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 now. justice alito: what is the difference between that set up and the set up that mr. lessig says is required? honor, thel: your crucial difference is that lessig is saying there is nothing that states can do to
remove or sanction electors after appointment for any reason. we are saying that we know from history and from ray, and the other side even admits, that this condition of pledging to support the candidate is a constitutional condition. that condition can be enforced just like any other constitutional condition. that is our key point. states have been removing and replacing electors of four violating conditions since before 1800. states have been choosing electors specifically because of who they pledge to support since the beginning. 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. that is never how american presidential elections have operated. they were chosen because of the candidate they promise to support. to adopt their view would be to radically change how american presidential elections have always operated.
justicestice roberts: sotomayor? council, i amyor: curious on your views of the 10th amendment. the other side points out that you never raised it. two of my colleagues have referred to it, but i'm i assume a quashtly that it puts on relying on the 10th of the mentor situation like this? this is a new procedure that congress intended. the state can't say that they expected or reserved aright in something they never knew they had. gen. purcell: we didn't expressly argue the 10th amendment, but we don't think we need to rely on it. we support our colleagues in colorado. premise the fundamental of the constitution is that states have -- the federal government is the enumerable power, states have powers unless they are taken away. nothing in the constitution restricts states authority to
impose powers and enforce them. the text itself gives states the power to enforce electors. inherent in that power is removal power. the original understanding has always been that the appointment power of electors included removal power as you see in the early statutes. i don't think the court needs to rely on the 10th amendment to resolve this case. i think it certainly -- the background printable that states have powers unless they are limited by the federal constitution is relevant and supports our side. you rely on ayor: default rule which is the power to appoint inclusive power to remove. all of the examples that you rely on our vertical appointments where an official within one branch of government appoints a subordinate in the same branch for an indefinite. -- indefinite period.
the idea is that if i appoint you, i should be able to get rid of you if in your service to me you are doing something wrong. here, the state is appointing a voter to do something that most people think of as requiring some measure of freedom, which is the power to cast the ballot. the other side points out that there were other words that would've connoted something different than elector, like a delegate. you appoint a delegate to cast a vote for you. chose. not what congress an elector has a sense of someone that is going to vote. how can you say that that tradition within the executive
branch of the power to remove is controlling here? is reallyll: there three fundamental problems with the electors argument, a textual problem, historical problem -- justice sotomayor: i think it is your problem. gen. purcell: none of the cases say anything -- they haven't gone with this vertical appointment language. in their opening brief, they didn't mention debris -- default rule out all. we pointed out there are a different -- a bunch of different cases from the judicial branch. that vertical rule appears nowhere in the courts cases. the court has said that the removal power is inherent in -- it comes along with the appointment power. you said it in several cases. even if you hadn't said it over and over again, if you look at the history, the history shows that states could remove
electors from the very beginning. again, statutes from before 1800. in the other side's theory on this 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 it said that very clearly in fitzgerald over a century ago so their newfound theory about so-called horizontal appointments is just not supported by history or by precedent and it's kind of a sideshow, frankly. it doesn't help into the question here. the court has never drawn that distinction. >> justice kagan. >> general, what do you view as your best textual argument? argument istextual that nothing in the constitution limits state authority over how to electors or whether states
can those conditions and enforce them. we think there is a direct grant of authority in the appointment our has 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 minute use the word elector, they inherently meant someone who can exercise discretion doesn't make any sense. that is not how the term was being applied in any of the states. that is not how they understood it at the framers of the 12th amendment quite clearly intended to embrace the system as it had developed, where electors were pledging their vote and states were choosing them on that basis. that was a key point of the 12th amendment. >> if i understand you correctly, you are saying you don't have an affirmative textual argument. what your argument is is that the constitution doesn't say.
if the constitution doesn't say, we should presume that states were meant to decide. >> let me be more precise, justice kagan. starting principle is right that it should be the other side's burden to show that we can't do this. the power to appoint does include the power to remove. there is a textual grant. what i was getting at at the end is the central premise of the other side's argument is that these words, especially elector, require the exercise of discretion. it's not true as a textual matter and it's absolutely not true as a historical matter. argument really that asks you to ignore the original understanding and early practice and they are asking you to do oft based on words, meanings these words that are not how the framers and their content is 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 are sort of assuming the conclusion by saying that. >> i disagree. the court has said repeatedly that the power to appoint includes the power to remove and last year's text limiting that power, that limitation the court has set will not be implied. the only court has found -- the only time the court has found otherwise is when there was text limiting the remove power. -- removal power. 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 i think it's the other side that is asking you to rip these words out of context place vastly more weight on these kinds of dictionary definitions untethered from how the framers
actually applied them. they are asking you to adopt one possible reading the framers could have had of these terms and it's a possible reading that is just refuted by what the framers and their contemporaries actually did. and it also 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. is who thetters electors choose and they can choose whoever they want for whatever reason they want and they can't be removed even if they are taking a bribe, being blackmailed or say in advance, i'm not going to show for the meeting. it would radically change the way presidential elections have always worked in our country. >> thank you general. >> justice gorsuch. your argument is that a $1000 fine doesn't diminish or negate the fact that the elector here is voting.
and has in some real sense of a to vote that's being honored. law thatabout the new washington has adopted, the uniform faithful presidential electors act. that as i understand it, if an electorate 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 constitutions prescribed order of appointment meeting and voting? it seems like the voting comes first and then the appointment under the uniform law. and as it also consistent with
the federal electoral count act? if you can speak to me about those questions i would be grateful. >> it is consistent because the way the laws work is the elector who seeks to -- the conditions of their appointment is removed before they can vote. they are initially appointed but then they are removed when they violate a condition and then they are replaced and another elector is appointed who will follow the law that they promised to follow and keep their promise and vote as directed. so the order is proper. it is appointment and depending on where in the process the elector announced their intentions, they are removed. there is 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 voting for
somebody else. violatedle have conditions of appointment. both people can be removed by the state. even the person who says i'm not showing up because somebody who gave me $2 million to not show up because that might affect the outcome of the election, the other side says that person cannot be replaced. that makes absolutely no sense historically, textually or practically. >> thank you. >> justice kavanaugh. >> good morning general purcell. if you are right about the electors not having this kind of discretion from the constitution , i wanted to get your take on provision of article two section or that says no senator representative or person holding an office of trust or profit under the united states shall be appointed and elector.
what is the purpose you see of that provision if your theory of the electors is correct? 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. congress to --nt the president. they prohibit members of congress from serving in that role. they left it to states to decide whether electors would serve as hamilton envisioned them, as the kind of shoes or 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 be bound to the people's preference. so they imposed that limited limitation on who could serve and that is another example of a constitutional condition
limiting state authority. it just goes to the point that if the state can set a condition to serve as an elector, that condition can be enforced. lessig says that the framers considered various modes and you agree, they considered the states doing it directly or at least that was an idea out there through the legislatures or governors. they considered congress but there's a separation of powers there. want the't necessarily new president to be too dependent on congress. popular election was not adopted. so they came up instead with what mr. lessig describes as an indirect mode of selection with the model of electors who would exercise as he sees it their own discretion and independent judgment to pick the best person to be president, the best person
to head the executive branch. mode remains interact consistent with the framers choice only if the electors retain an illegal 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 the impact of the influence on southern states. they settled on an approach that left it to the states to decide. the broadest possible power of determination to how to appoint electors and what role they would play. the options open to states certainly included leaving the discretion and states choosing electors specifically because they pledged to support particular candidates. thate 12th amendment become the virtually universal practice in states. the framers of the 12th amendment well understood that
and adopted the language of the 12th amendment to facilitate that. if you need a historical example, in the election of 1804 right after the adoption of the 12th amendment, it operated just as they had expected. forwardies put presidential and vice presidential tickets and every single elector in the country voted for the party ticket preferred by their states motors. were in manyngs states may or formalities. they filled out preprepared ballots. they did not discuss or deliberate and congress did not question a single one of those ballots or their validity. that just shows that by the time the 12th amendment, 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? >> thank you, mr. chief justice.
over 100r years, 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 the selection and 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, regardless of how their state voted and regardless of whether they are being bribed or blackmailed for their vote. test -- text,ons the original understanding and historical practice all demonstrate that states are allowed to require residential electors to vote for the candidate chosen by the states voters and to enforce that requirement. we ask you to reaffirm that principle today. thank you. >> thank you general.
mr. lessig, you have two minutes for rebuttal. >> 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 you can see obviously that incidental to the pit appointment -- the appointment power -- 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 vote and they have never exercised that. the state has asserted that because they appoint the electors they get to control the electors. myers and page 119 says the reason for those in charge of
and responsible for ministering functions of government need the authority to control them by removing them. that was the reason for the principal. but there is nothing to suggest the framers imagines the states administering the electoral college. that's why the states don't appear in the 12 them in at all. and finally, if you recognize this power -- if you find the state has the power to regulate electoral votes, may the state for bid the elector from voting for a candidate who has not visited the states? who has not released his tax returns or has not pledged to -- there are an endless list of partisan opportunities 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 have this power and the power has always been with the electorate to exercise discretion. thank you. >> thank you council. the case is submitted. the last of 10 supreme court cases being argued over conference call to the pandemic. and with the public being able to listen live for the first time in the courts history. the next case also deals with electoral college delegates. colorado department of state versus baca is whether the state can require delegates to vote for candidates based on the popular vote of their state. immediately following today's supreme court session in about an hour, joanne jeffrey rosen of the national constitution -- join jeffrey rosen of the national constitution center. on c-span,e live c-span.org and listen on the free c-span radio app.
later this afternoon, the house select subcommittee on the coronavirus crisis holds its briefing with experts including dr. scott gottlieb. watch live at 3:00 p.m. eastern here on c-span, online at c-span.org, or listen live on the free c-span radio app. now, supreme court oral arguments will continue live here in a moment.