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tv   Supreme Court Oral Argument in Colorado Dept. of State v. Baca  CSPAN  May 13, 2020 11:17am-12:22pm EDT

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>> we will hire argument next in case 19 518, the colorado department of state versus michael baca. i noted at the outset that justice sotomayor is recused in this case. general weiser. >> thank you mr. chief justice and may it please the court. the constitution authorizes states to use their authority to whove a bribed elector, one engages in rebellion or one who would perpetrate a bait and switch on the people of their state by voting contrary to a binding pledge.
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by contrast, if a state wishes to treat electors as free agents rather than as proxy voters, it is free to do so. in short, states determine how to select electors and ensure that they meet the relative requirements and perform their duties as assigned. this means under green that states can oversee bribery as an incident as a power to appoint. this must include the power to remove and elector without requiring a full criminal trial. under my friend mr. lessig's position, as a practicality bribed electors would cast ballots and illegal notes. the state prevented mr. baca from casting and illegal ballot. just like it's an illegal ballot if you don't sign it. as this course explained, the purpose of the 12th amendment reflected the reality that the
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states actors acted as pledge agents. point justice ginsburg about the enforcing of a pledge requirement, it's worth noting people rely on such pledges which are taken voluntarily. voting requirements would be of litter value if not enforced. enact have continued to laws. congress has consistently deferred to the authority and no court other than the 10th circuit allow has invalidated the binding law. i would welcome your questions. >> my question is to ask if there is anything that general purcell set on behalf of the state of washington with which you disagree. a slightd only add wrinkle. he did indeed endorse our 10th amendment argument. what i would say is the 10th
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amendment is an important interpretive principle because the constitution gave the states authority over the elections. >> would you state for me exactly what you think the limits on the state power to replace electors are? >> your honor, i would echo my colleague from washington. notoverns whether or another constitutional provision is violated. the 14th amendment quite notably means a state could not remove and elector based on race or religion. the qualifications clause means you can't remove electors for the purpose of adding qualifications for who can be president. you selected electors, one of the requirements as they had to be relatives of the legislators, that would be all right? here in colorado
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we picked electors in 1976. the state legislature did it directly as long as that choice doesn't volley light -- violate a constitutional provision. >> what if the rule is the electors are chosen pursuant to slates but anyone who says stateng disloyal to the between the time where selected and the time they cast their vote will be replaced? honor, as my colleague from washington noted, once people are voting to make a choice, people have a right for their ballots to be counted. , the ballots of people would be invalidated after the fact. that implicates this courts line of right to vote cases. >> any other limitations on the power of the state? ort about the bribery cases
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bribery hypotheticals that have discussed? -- have been discussed? >> the ability to remove bribed electors is crucial for the states to have and not only after criminal trial but after there is a basis for this concern. to your point, if a state failed to remove a bribe elector, the state would not have violated a constitutional provision per se, it would have violated its duty as a sound overseer of presidential elections. >> that's even after the electors have been chosen. go ahead. >> the state is indeed authorized to remove electors who have taken a bribe, if that's your question. >> yes. what about your power to appoint argument? it does seem certainly our case is involving the power to appoint if by executive
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officials or if the president to say if it carries with it the power to remove. withhat has always been respect to inferior officers. and the electors here it seems to me are not inferior in any way to the state legislator. appointeesrights as carrying out federal responsibilities as well. so i don't see how those authorities support your position. honor, we disagree. the constitution clearly gives states plenary plow or -- power acting as a steward over the presidential election system. that means if electors were to take a bribe or not to show up, it's on the state to address that point. if you only left this to congress in the final instance, that would mean that all theress could do is remove elector and have it not be counted. the states can replace and elector and make sure the state
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has the constitutionally authorized vote in the electoral college. critical role, a and that includes the power to remove. >> thank you general. justice thomas. brieferal, you start your questioning standing in this case. i wonder if you think under our precedent, there is standing when a person is removed from an elected office. >> your honor, the past cases involving removal from an elected office like powell involve an official with a salary. what's unique here is there is no salary or other personal injury. what's at issue is the institutional role itself. as this court made clear in smith, an individual doesn't have standing to challenge an
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institutional role that he or she may believe is unconstitutional. >> so in a removal case, at what point do you think there would be an injury in fact? >> insofar as someone gives up a fact., you have injury in >> on a separate issue, throughout our history there not pledges among electors. me the point out to first state law that required pledges in our history? >> i can't. it was oregon that did so in the late 19 teens. what i want to underscore is
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that wasn't the first time and elector was removed. in 1912, nebraska did remove and elector who had promised to violate the pledge because the court in that case said it would have been a fraud on the people of nebraska. >> you attach yourself to the arguments of general purcell. i understood to -- his comments on the phone -- on the scope of the federal concept or argument. could you give me what your take is on that? view is that doctrine doesn't really fit here. under the constitution, it's the role of the states as stewards overseeing the presidential election process. the typical federal function case, you are worried about a state interfering with a federal official. here as this court has made
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clear multiple times, electors are not federal officials. they are appointed by and transmit the vote of the state's. you, general. >> justice ginsburg. idea ofou give us an of practical consequences ruling one way or another? how would a ruling against you actually alter our democratic processes? most states already require elector pledges. voting throughout the years has always been rare. so how much difference does it make? honor, the chaos that could result from upholding the 10th circuit's ruling is one that could occasion a constitutional crisis. colleagueed by my
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from washington, if states have no ability to remove bribed electors and all that's left is congress's ability to choose to count or not count the mere fact of bribing electors in an open enough way would knock out electors, would limit who could vote and ultimately could sway the outcome of presidential election. it's the role of the states to oversee confidence in our election systems, to ensure the public's voice is heard. values, thehose integrity of our elections are at stake in this case. >> returning to the standing question. baca was removed from his post. isn't that a sigma at least? it may not have economic consequences, but isn't it a blot on his reputation?
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wouldn't that constitute a cognizable injury? auditor inor, the smith believed he suffered a , and thattigma concern of his statement was not sufficient to give him standing. i would submit the same rule holds here. >> thank you. >> justice breyer. >> this is a lawsuit brought sectionthe state under 93. the courts opinions i take it have made clear that estate isn't a person under 1983. everybody has waived that argument. both sides would like us to rule. but can they? if someone sues a foreign country under 1983 and a foreign country can't be a defendant under 1983, can the party simply
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get an opinion from this court by waving the question? >> i would start with justice ginsburg's opinion in the northwest airline case where she made plain that whether or not there is a claim for relief in a statute is not a jurisdictional question. what we are dealing with here both under 1983 and 11th amendment immunity is strategic decisions made by our state in the course of litigation. we made those decisions because we wanted to medic gate -- litigate the case on the merits. that's how we've chosen to proceed. >> yes, but that isn't my question. my question is of course you want a decision from this court. but mr. smith might want to decision about how the constitution applies to somebody in mexico or to somebody in russia. can the parties get that advisory decision by simply saying, we waive all the jurisdictional problems.
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all the nonjurisdictional problems. all the problems that say this statute doesn't apply. courttice breyer, this will opt for whatever ground it chooses with respect to whether the court has to rule on this issue, the answer is no. this is not a jurisdictional question. for us this was one of several strategic questions on what grounds to litigate. >> the other question is i take it that it's only in 1960 that the first state passed a statute that actually removed or punished a person for voting the runway. of briberyeir cases that went unpunished before 1960? was there a single case? if so, how many? and what happened? where their votes counted although they were bribed? thehe first statute was in late 19 teens in oregon. there were statutes
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that required a pledge that didn't punish people for how they voted. but regardless, same point. >> we don't have a history of what types of changes were made. we know they happened all the time. inprofessor hardaway notes, michigan there were electors who just didn't show up who were replaced on the day that the electoral college had to meet. we haven't had electors who were upset about having been replaced or not counted. >> that isn't my question. my question has to do with bribery. and before the first statute was passed more than 200 years after the constitution was first created, where their instances of and elector being bribed and if so how was it handled? >> we don't know of any such instances, your honor. past elections, where
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their concerted campaigns to influence electors after the popular vote was cast for the purpose of either reversing the results that was produced in the electoral college by the popular vote or throwing the case into congress? >> the most famous such case would have been in 1876 involving the tilden hayes disputed election. >> my other question is essentially the same one that concerns me with respect to the positions of all the counsel in these cases and that is limitation if any on the arguments being made. is it your position that estate has planar power to remove and elector? not, under what circumstances can and elector not be removed? mcpherson, we see --
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induce plenary authority over the removal power of electors and the constraint on that is other independent constitutional conditions. >> suppose the legislature is in the hands of a political party other than the party of the candidate who wins the popular vote in the state. legislature remove all of the electors who were pledged to vote for that candidate and replace them with other electors? important point. let me answer your question and then get to a slightly different one. if the legislature announces the procedure in advance and gives people the right to vote at my exercise that right, the legislature cannot undo the public's right to vote without violating the right to vote line of cases.
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however, if the legislature acted earlier, say the prior spring to change the process to give itself the power to appoint electors, not the power in the hands of the people, that's a choice state legislatures could make. litigatedon it was whether or not a legislature could move from a winner take all to a districting system. there was a partisan motivation for that change and the court said the legislature's power was plenary. >> if we agree with you that the legislature has plenary power to remove electors, then once the people of your state understand when they cast their vote for president that the legislature has the power to remove the electors pledged to the candidate they favor and replace those electors with other electors? what we are asking for, what we believe the right to vote cases require is that the public told what they are voting on. for the chief justice's earlier
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question, if the public is told you are merely casting an advisory vote as opposed to a binding one that you can expect will be followed, that's a different case. right tos the best vote case that stands for that principle? itin grey versus sanders says the public has a right for their ballots to be counted. >> thank you counsel. justice kagan. >> first on your 10th amendment point, why doesn't thornton foreclose that argument? i would think that the power that we are talking about here is not such a power but instead was created by the constitution in the first instance. how can the constitution support you with warrenton?
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a similar suggest principle to what justice kavanaugh articulated earlier. justice kavanaugh noted the cast principle means that if you have a closed case you avoid creating chaos. we would say you avoid intruding on federalism concerns. >> i thought that was only as to the powers that the states held prior to the ratification of the constitution. as a strictr, matter, that is what the 10th amendment does. there is also the interpretive principle picked up in gregory versus ashcroft that says when looking at intrusions on state feds, you doo the so lightly. lessig ended his argument by giving the number of hypotheticals. he said if the state can do what you're doing, a state can also enforce pledges to vote only for candidates who have visited the state or release their tax
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returns or who take a position on certain issues. is that right? >> not necessarily. the tax returns issue has been litigated under the qualifications clause in california, and the court said that could constitute adding a qualification to be president. there's also an independent question about whether or not you could have a state saying we won't allow someone to be on our ballot in the state at all if they haven't done x y and z. it was access to the ballot context that the issue arose. >> couldn't you be said to be imposing a qualification too? that the candidates actually received more votes than anyone in your state? wouldn't interpret that as a qualification to be president, particularly because the right
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of the states to have a system where the people could be heard is part of the original constitutional design and confirmed in the 12th amendment itself. >> it's obviously a pretty normal understanding of what elections do. if you assume that these electors were meant to use their own discretion, then the popular vote was not required and it would be imposing a qualification. >> if you assume electors have this discretion, you have assumed the answer to this case. we would say they don't have that discretion at all. >> but you are assuming the answer in the exact same way, aren't you? what is or is not a qualification sort of depends on this case. so i don't think you can get rid of mr. lessig so easily as you would like to. your honor, our position is that the constitution is silent on whether or not you can have electors representing how the public votes.
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that is inherent in this design and thus we say what is inherent in design couldn't be an additional qualification. >> thank you counsel. >> i would like to continue the same line of questioning. it states under a plenary power to remove electors. what would prevent them from passing a law to say that all electors have to vote for presidential candidates who support certain positions or who have done certain things or who have visited the state? i understand your ex post argument, that states can't change the rules of the election after the election. and have to provide voters notice. but if they did it in advance, what would prevent them from
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doing so in your view? >> i'm trying to square how this fits with popular vote system. because if you give people the power to vote and i exercise the power, then our argument is you count their votes. what i believe you would be getting at would be a preclearance process where you have to pre-what electors could be on the ballot before people could vote on them. >> let me just interrupt you. i'm sorry counsel. you've indicated it would be fine for people to have an advisory vote to 12 wise people who would then make the final decision. why couldn't you also have a system in which the people provide advice within certain parameters set by the legislature? >> i think that's the same context i had in mind. you would basically give people an advisory vote and then after
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the fact you would have to ask. fireey have been alerted -- prior to the fact. in advance, they have been notified that they are free to provide advice to 12 electors and their advice is going to be bounded and there are certain things that the electors have to because the legislature says abide by or else they will be removed. and those are again, as a presidential candidate visited the state, has he taken this or that position. has he or she turned over her tax returns. whatever the conditions may be, it's a bounded choice. you have argued that choice can be bounded. what prohibits the state from doing that? >> the state can add limitations as long as they comply with other constitutional provisions. >> and do those?
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>> the requirement to visit the state. ae tax return issue raises qualifications clause question that could be a concern. >> the presidential candidate is on the ballot. it's who the electors can vote for. is that a qualifications problem in the states for you? >> it would be because if you tell electors they can only vote for pick whatever the concern would be, tax returns, people over 50. the concern is you could be adding a new qualification to be president and thereby disqualify and affect someone that the constitution would qualify to be president. >> you said visiting the state is permissible. that condition would be permissible in your view. >> i don't see any other constitutional constraint that would address that issue. is position is the power plenary or exclusive.
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the state can oversee electors and remove them who don't follow requirements the state aims appropriate. >> and q counsel. justice kavanaugh. -- thank you counsel. justice kavanaugh. >> what is the purpose of having electors? >> thank you. when electors are set up in the constitutional design, that allows for states to make a choice. vote as can either proxy voters on behalf of the public or they can be free agents. structure uniform across the several states, you give states the ability to choose each model they want. >> wouldn't if that were the it to, why not just leave the states as opposed to going through all these details about how electors are supposed to operate? you know justice jackson in re
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said no one can deny that the plan originally contemplated was that electors would be free agents to exercise an independent and nonpartisan judgment as to the people best qualified for the nation's highest offices. that's the quote from justice jackson. that implies not a choice but a requirement that the states give independence free agent status to electors. and why go throughout the details if it's the way -- i'm asking more broadly if text has all these details to set up a design that is closer to what justice jackson articulates. where in the text do you hang your hat? honor, our textual hook
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is the delegation of authority to the states. the electoralsaid college was all about giving the states authority to oversee presidential elections as they saw fit. as the majority in re noted, contemporaries of the founders did indeed see electors as proxy voters on behalf of the public and that was absolutely the backed up to the 12th amendment. so i would also point you to the 12th amendment as effectively confirming and accepting the fact that electors can be and most often are proxy voters, not free agents. the founders think did not leave it up to the states to decide whether they wanted their members of congress to be electors? >> your honor, the constitution had a series of compromises between separating powers, between the states and federal government and between the states. this was one of those compromises that was reached at
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the final days of the constitutional convention. >> thank you. >> you have a minute to wrap up as you'd like. this case isoted, all about state authority and on the theory of my friends on the others, states have no authority even to remove bribed electors short of a full criminal trial. statesnders gave the this authority, expected them to exercise it in ways that were sound. that's what has been the history of our presidential elections. we would urge the 10th circuit decision to be reversed. >> thank you counsel. and make it justice please the court. this case is about a trade-off between flexibility and rigidity. states rule is too rigid and that rigidity could come at a steep cost. the states binding law has no exception. if a candidate dies between the popular vote and the vote of the electorate, there is no exception.
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if a candidate has a stroke, there is no exception. if there is widely recognized fraud or bribery by the candidate, no exception. if there will be tied to electoral vote and potentially deadlocked house, no exception. electors vote for the winner of the popular vote in the state, there is no winners. that's the only option. int rigidity has no place our constitutional universe. if something goes awry, the framers thought electors could vote with discretion and the 12th amendment didn't change that. when0th amendment framers they analyzed these contingencies recognized even 150 years after the framing that electors still had discretion and could and should use it in the case of death of a candidate. this shows that given the current system of selection by an electoral college, there must be times when electors and only those electors are best placed
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to act in the interest of country. the states have a problem with the idea of an electoral college and they want to write it out. they make no bones about it. perhaps we would be better off with indirect election because the months long process presents some instability no matter who wins this case. until we have an article five amendment, the vote of real humans called presidential electors isn't going away. to make sure the system we have works sensibly given the constitution we have now and those human electors vote by ballot, they must be permitted to do so with discretion, your honors. >> i will begin by asking you the flip side of the question i asked general weiser. is there anything that mr. lessig said with which you disagree? >> no, your honor. we filed an opening brief and i will sign on to what he said in the first hour. >> you gave a number of examples
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of situations that have gone way tod there was no take account of them. but i'm not sure your position has any limits either. what are the limits to your position? >> the limits, your honor, are that electors must be permitted to vote with discretion. is a choice. there is always the possibility of bribery, always the possibility of corruption, and the framers considered all the possibilities and placed the ultimate selection of president in the hands of electors. >> i take your answer when i ask for limits to be that they must be allowed to vote in their discretion that you don't have any limits. >> your honor, there are no limits in that voting by ballot so long as the ballot is for a person. the 12th amendment says they must vote for a person.
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not a giraffe? of course they have to vote for a person. 1872ngress concluded in that the greeley vote was integral -- wasn't a vote for a person because it was a nonliving person. those are the limits of the discretion. ande is great discretion appointment. the state can absolutely discriminate between all kinds of people and they do on the basis of political party. once the vote against, that vote by ballot is the electors. elector can say, i'm going to flip a coin and that's how i'm going to vote. >> that's the same discretion that u.s. senators have, these are elected officials and they have that same discretion. >> that sounds pretty limitless to me. at's say that an elector has
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contract. the parties insist that electors sign a contract that you will candidateur party's and if you don't there will be liquidated damages of a thousand dollars. an elector is selected and breaks that contract. votes for the other individual even though that individual didn't win the popular vote. cannot contractual commitment be enforced by the state? and thatgally, shouldn't be surprising because that is the same prohibition that applies to congressional electors who cannot sell their votes. even though as a condition of participating in a primary. and we cite these cases extensively in our briefs. you can force regular voters to take pressures to support a party. you just can't cross that line
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and enforce them. >> thank you counsel. justice thomas. thatunsel, you mentioned asators are free to vote members of the house of representatives. there is some degree of accountability for them when they voted -- vote a particular way. what is the accountability for an elector who strays from what is expected? >> there are several forms of accountability. the first is the selection process because they are party people and they are selected by the political parties. after the vote, they can be kicked out of the political party. they cannot win elections. they can have negative political consequences. that's the exact same thing with senators. accountability, but it comes six years later. if a u.s. senator promises to support only low taxes and then
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at every opportunity raises taxes, their only accountability is six years later. that's the nature of political discretion and that's the discretion electors have here. >> but there's also accountability within the senate. accountability as far as removal from office. you are saying that with an electorate that those other forms of accountability are not available. >> they are, your honor. it absolutely party discretion, party meetings just like any other percentage of body. to quibble slightly with what you said in terms of removal of u.s. senator, there is no precedent we have found of a u.s. senator being removed perhaps even by an appointing governor in the case of a vacancy on the basis of a vote. certainly some sort of criminal misconduct, sure. but not on the basis of a vote. that's really the same analogy
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here. >> you mentioned with respect to the state that the state could -- that after someone dies, their system is so rigid that you can't make changes because of the death of the candidate. but i think that on your side as a chief justice alluded to, you have a similar problem because the elector who had promised to vote for the winning candidate could suddenly say, i'm going to vote for frodo baggins. i really like frodo baggins. and you are saying under your system, you can't do anything about that. think there isi something to be done because that would be the vote for a nonperson. manytter how big a fan people are of frodo baggins. that said, i do think the important point is that the
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framers hash doubt these competing concerns. they understood the stakes and they said among these competing hypotheticals, electors are best placed to make the ultimate selection. that hasn't changed. >> thank you. >> thank you counsel. justice ginsburg. >> i don't understand your point about rigidity. i understand the states position is the states have a choice. electors have an saypendent vote or they can the electors must follow the parties orders. so the states are being given leeway to do it one way or the other way.
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rigid do you say it's when it seems to me it could be described as supple? because states can have it either way. the statesginsburg, do have great flexibility as you mentioned in choosing the mode and method of appointment. but the laws that they've written here, the laws that were enforced against my client mike baca were very rigid. they are rigid in the sense that there are no exceptions once past. and that rigidity conflicts with supposition that every single congress that has looked at the issue of presidential selection has assumed exists explicitly in 1933 when the congress drafting the 20 amendment. that's a key oversight of these laws. even down to the more modern era when congress was debating the and noted that it needed the bar poll taxes for elections for presidential electors because they still
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exist in our system. that's the rigidity i'm talking about, justice ginsburg. >> baca has low economic injury so has no standard to complain. >> there is standing. we have asked for one dollar in nominal damages. mr. baca gave up an additional five dollars of salary. 1-4-305 statute provides electors with five dollars. the stakes financially are small. but the stakes constitutionally are large and sufficient to give standing. >> justice breyer. >> to go back to the technical
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point, you brought a suit under 1983. against the state. and it's fairly clear in the case law that you can't sue a state under 1983. what are we supposed to do about rrow: i will echo what the attorney general said and just last week in the smith case. the court said the court's job is to resolve dispute framed by the parties. the only way the courts should look at that issue is if it is jurisdictional. i will give you to give you two sites. any tworoblem is that people come plaintiff and defendant, who would like an issue decided by us, simply have to waive enough matters so that it has to compress. they do whatever they have to do . what are we supposed to do about that? mr. harrow: i do not think this
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case implements something like that. surely theythat could hear. this was brought against the secretary of state through a compromise giving up the right --attorneys fees, justice breyer: i will look at that. of mentioned in terms accountability, but why didn't you? for at least 120 five years, there were faithful selectors from time to time. congress usually counting them and sometimes they didn't. is that not a power that congress has to make certain that the faithless elector does not cause trouble? what is your view about that?
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you didn't mention it, so you probably do not think it is? mr. harrow: i think, to be clear, that example supports our side. i'm interested in why you do not consider this significant. i would like your true answer to that. mr. harrow: the greeley votes, the three rejected by congress, were actually faithful. but i mean,er: doesn't congress's power, section 15, does that act as a significant check on the faithless elector or does it not? it can.ow: the courts have never interpreted what that means for a vote to be regularly given. i do think congress possibly has the power to reject the faithless vote under certain circumstances, but we note that it has never done so.
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votes,otes were faithful and the 63 votes who voted for other people, who are faithless and some ways, those were all counted. >> thank you, counsel. justice alito: we interpret the means whatn that it it means, regardless of consequences. i am interested in understanding what the consequences of your position would be. experts on by elections that the consequences would be potentially chaotic. i'm thinking in particular of the professor's brief, and other weightings by experts on elections that acceptance of your position would mean that after an election, where the apparent outcome, based on the popular vote, is a small margin of victory for one candidate, there would be concerted to change that result
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by influencing a few electors. and that could be achieved by influencing just a feel elector. that is just one of the consequences. in most states, the electors are not even listed on the ballots, no therefore the voters have way of trying to ensure that the electors who are chosen are electors who really will honor the wishes of the voter. that this is deny where your argument would lead? mr. harrow: we do deny it. here is the prologue. attorney general allies are, in a response to a prior question on the same issue, noted that there had been campaigns already to affect electors. to famously contested election of 1876. a scholar who we site on the last page, alexander's research shows there has been a concerted
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campaign in 2016, in 2000, and beyond. 20% of electors have contemplated switching their votes and 100% have been contacted. justice alito: you deny that there is a greater chance of this happening? effort get an supported in 2016? inventing these electors from the beginning of 2015. >> that was not my question. did he advocate that some electors changed their votes for the purpose of changing the outcome of the 2016 election? mr. harrow: i believe that he supported the legal discretion that we are here today arguing for. the reason is that is in the constitution, but also that going back to the cast point, the center has always helped. that, 18ways held states today, have no such laws.
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the states are not about to say that there is some constitution -- constitutional requirement that they implement them. they say the reverse. it is a feature and not a bug. justice alito: do the states have any power to remove elections? i cannot think of any government officeholder who cannot be removed from office. power tohey have some remove them -- the electorate, just not what interferes with the core function of the ballot. justice alito: what is the limit of the power to remove? mr. harrow: the limit of the power to remove is again, that interference with the core function. if an elector does not show up to vote, it is our view that is impossible to remove and replace . that is not true. it becomes a vacancy. that it can and
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will be filled. bribery,removed for absent conviction by proof be on reasonable doubt, before the time when the electors need to vote. not think so and that is consistent with the treatment of every other elected official. representatives cannot be moved -- removed for a mere whisper of bribery. they have to be removed for proof of it and the same would be true here. justice alito: a member of congress could not be removed from office by two thirds vote without a criminal conviction? the congress certainly has power to remove but it must go through a full process. i took your honor to be asking about the instantaneous removal of one official, a single state official will make a decision to kick someone out based on a rumor, no, that would be
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inappropriate for any sort of elected official and it would be inappropriate for electors. >> thank you, counsel. suppose that i read the constitution and i find it just does not say anything about this subject. there are some hints here and some going the other way and i mostly read it and say that the constitution is silent. what should i then do and why? in that case, i think the original understanding would control. clear languageis in the constitution, and i want to return to that. the original understanding was control because it is so clear. the original expectation -- you mean the: original understanding like prior to ratification? because i would think that if flipped, even if you are right.
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there were these pledges, and there has never been a substantial amount -- i would think that the history of the time and since would cut against you, no? >> no. our quibble is not with -- it is not with the pledges or the idea of party control and having to those parties in our system. the idea is with enforcement of the vote and what occurred here. removing elector who actually votes, he actually presented a vote and attempted to vote and place it in the ballot box and that was rejected. that has only happened in 2016, despite party control of the election process. justice kagan: what if i said i think the best thing to do is to leave it to the states, to not impose a constitutional requirement on them? againstow: i would push
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because i do not think they are silenced. justice kagan: but that is hypothetical. if i think there is not enough in the same way that ray thought it was not enough to provide an answer to the question, and all of these states were doing what colorado is doing, why not just leave it to them? because when you said there are all of the states doing what colorado is doing, it is actually never the case. it is 220 years of unbroken history. i think that speaks loudly if you are concerned about how to deal with that science -- silence. >> go ahead. you are ready, if to move on, that is fine. to make another point. >> that was directed to justice kagan. justice kagan: i am done, thank you. just as gorsuch: -- justice
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-- if congress decided to do so, would we be here? mr. harrow: you would. there is no mechanism for mr. bacchus who asked for that vote, any mechanism other than making a phone call. justice gorsuch: i believe you are fighting my hypothetical. let's suppose he had asked congress and congress had agreed . would we be here? mr. harrow: if congress had counted his vote instead of the vote -- then no, perhaps not. lost thenot have office. he would not have had a chance to vote for vice president either. we would probably not be here.
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>> he did not try to ask congress to cast his vote, did he? mr. harrow: he did not. there is no mechanism for it and the state has not pointed to one. justice gorsuch: and the damages he seeks our six dollars, is that right? mr. harrow: it is even less, one dollar. justice gorsuch: one dollar nominal damages. why should we exercise our discretion to get the case when a nominal damages are one dollar, he didn't seek congress -- as you point out, it is unclear whether there is a mechanism to do so, and we have a call to action that doesn't exist -- we're asked to overlook the cousin of the stipulation by the parties. why is that a manufactured litigation that this court should decline -- that we should bother with? mr. harrow: because once there is jurisdiction, and i will just
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emphasize that the question of whether -- justice gorsuch: i understand jurisdiction but this court has discretion over what to entertain. it also has some authority to emphasize the importance of the adversarial process. and this properties. it does and i think the argument show this is highly adversarial on the merits. there was a conflict in the lower courts on an important issue and the unique chance that this court has to decide the issue of presidential selection outside of the very contested context of an actively fought presidential election. to the extent you are talking about discretion and not jurisdiction, i think it is well exercised here and colorado does not contest that. justice gorsuch: thank you. thank you,anaugh:
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chief justice, and good afternoon. of should the growth political parties affect our analysis of this case, including how the 12th amendment interacts with article two? mr. harrow: the political parties provide a context for nominating electors and the appointment of electors, but the fact that there are political parties now and were emerging political parties when the 12 member was passed in 1803, does not affect that the word elector remains in the constitution, and that electors are people who vote, and all of the words and structural principles means they can vote with discretion. justice kavanaugh: justice kagan what toquestion about do if a text is silent. we have talked about various things that could fill the gap, including the states authority. another under our case law is casesical practice under
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that we look at historical practice on the text. what is your strongest point on why the historical practice favors you rather than favoring the other side? in addition to the historical practices already discussed, i also point the court to the history of constitutional amendments and shootist to try and abolish the office precisely to limit the discretion that everyone introducing the amendment assumed exists. in 1801 with thomas jefferson saying maybe we should get rid of the office of electorate and it can only cause trouble. it continues in the 19th and 20th century. such amendments were introduced in essentially every single congress. those amendments were not meaningful and the people who thought that we ought to
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eliminate discretion were not writing on a blank slate. they were writing knowing there was electorate discretion. that would be a lot of wasted oxygen, if there was already a way to eliminate elector distraction and they didn't have it in the first place. >> thank you. >> a few minutes for wrapup, if you would like. theust to conclude briefly, court knows the intervention here was extraordinary and unprecedented. to undoado is permitted the human -- baked into this system of presidential selection, there could be a chaotic outcome. by contrast, most electorates have been free in most elections and here we are today. states,scretion in 18 and a decision in this court will not change that. the question is whether to approve of the state's novel intervention, and left wondering how the states overly rigid
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interpretation could go haywire. as we -- as we have discussed, in case of death or other unforeseen circumstances, and whether the court should keep with the constitution until mended, and maintain indirect election, acknowledging that both sides have a vision of presidential selection that is imperfect, but various ounces and separations that our constitution's drafters and a mentors have put into the constitution, all of those should begin a role in our constitutional universe. that as a. thank you. >> two minutes for rebuttal. >> thank you. let me make three points in response and offer closing spots. the payment or nonpayment of the per diem fee was never up -- never before alleged and any reported payment is not in the record. on nominal damages, prior cases ike smith and berg, to not
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report -- instead focusing on whether there is an actual personal injury. second, an important point about congressional removal, it is worth noting there is a prescribed removal process for senators as justice alito noted. no suchctors, there is process. this court's default rule controls. the power to remove is incident to the powered to point. it is worth noting that this is the first time we have seen an elector who violated a state binding law. up until now, including the 2016 election, we've seen congress defer and count votes as transmitted by the states. two closing thoughts. during the course of the entire litigation and the argument today, my friends on the other side have failed to offer any viable theory on how to adjust the spectacle of a bribe elector, election votes for photo --
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or the ones that would perpetrate a bait and switch on the people. colorado's pledge requirement addresses all such arms. after over 230 years of constitutional tradition, my friends on the other side would toss out our nation's state centered model of electoral accountability in favor of a treacherous experiment. we urge the court to reject this dangerous timebomb and avoid a potential constitutional crisis by reversing the 10th circuit judgment. thank you. >> thank you. the case is submitted. >> the honorable court is now adjourn. -- adjourned. court heard 10 cases by conference call due to the coronavirus pandemic. for the first time in the court's history, justices allowed the public to hear those arguments live. the national constitutional fest -- centers hosting a conversation about today's
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cases. live coverage begins a moment. [no audio]
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>> as you have known for the last couple of weeks, the supreme court has been holding live telephone hearings, taking a look at various cases the court is considering, and we have been following them and you can see them on c-span as the hearings play out. here to join us to talk about the case to be heard is greg of bloomberg news, a supreme court reporter. today's case is directed to people known as faceless electors. can you describe what that means? >> there is a broad expectation that when people cast their vote for president, that the candidate who wins the state will get the states votes, what is known as the electoral college. but those are individual people who vote in the electoral college. the question in this case is whether those


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