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tv   Supreme Court Oral Argument in Chiafalo v. Washington  CSPAN  May 13, 2020 6:44pm-8:01pm EDT

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they could consider a resolution authorizing voting by proxy. as well as remote committee proceedings. 11:00overage begins at a.m. eastern on she spent three, or you can listen live on the free c-span radio app. considers ame court challenge to a washington state to that requires electors cash their electoral college ballots for those that when the popular vote. the case involves three washington state electors who cast their ballot for colin powell rather than hillary clinton. 111 minutes. is
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>> all persons having business before the honorable, the supreme court of the united states are to give their attention. the court is now sitting. god save the united states and this honorable court. we will hear arguments first this morning in this case. >> it it pleases this court, the question in these cases is straightforward. to the states have the power to how an elector may vote? they do not.
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they declare that the vote is as the constitution expressly describes them, their vote, meaning the electoral votes but article two, in washington effectively gives the states the power to cast votes for president in such a manner as the legislature therefore -- thereof. the actual article does not give the states the power to cast votes. togives the states the power appoint electors. the actual electors that the constitution creates have legal discretion as every elector does. is covertlyary, it
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fettered discretion. washington's alternative to best discretion in citizens rather than electors may be a better question for this court is not which plan would be better. the question is which is the constitutions -- what does the constitution say now? the states get to a point, no doubt but they appoint electors who are then privileged to cast their votes without relation by the state. to this? object >> it is simple requiring a perspective -- prospective elector to take a pledge. >> having no legal obligation
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as partral obligation of the appointment power of the state. of a sanctionn makes no difference? >> the sanction makes all the difference. so long as there is not a legal sanction and the pledge is appropriate. you can't punish somebody for a vote in congress but there is nothing inconsistent with the speech and debate club. states right now are asking members to make a pledge of the conditions of being a party member. if there were a fine of one dollar, you would say that violates the constitution. one of -- what if there was no violation at all? >> of find is a legal obligation. it crosses the line. the state has no such power to
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impose such an obligation through law. >> your argument is not that the sanction must have coercive effect, it is simply that if it is only a symbolic requirement, it still violates the law? is symbolic requirement. it is an important moral requirement. it is a moral obligation when you take a pledge. it can cross the line and become illegally coercive obligation. legally coercing, you mean something different than coercing. in other words, if you add one dollar, that adds -- becomes legally coercive? mr. lessig: that's right because of fine is a legal obligation.
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there is no problem with santa that congressperson to be a member of the republican party you must pledge support to 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
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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 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
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discretion? mr. lessig: the federal function establishes the discretion, your honor. it is exactly the same as in the cases of hock and lesser where the question was a state legislator's discretion to vote on an amendment. it works for the people of the state, subject to the constitution of the state. hock and lesser established was that that states legislature is 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. the federal function is a 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. that is the function which the constitution gives to electors to stage from the power to appoint. justice thomas: is the 12th
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amendment mentioned discretion? mr. lessig: no. the 12th amendment mentions the vote, and of course, by 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? mr. lessig: you can certainly -- of course, this court has said -- the state can certainly limit
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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
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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? justice ginsburg: i was surprised at the answer you gave to the chief about ray. i would have thought that under your absolute elected discretion view, ray 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.
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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 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. that promise is unenforceable. mr. lessig: i understand, your honor, and it is difficult until we recognize how familiar it is. every single political pledge is
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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 debate clause. it is consistent because a moral obligation. justice ginsburg: thank you. chief justice roberts: justice breyer? justice breyer: good morning. counsel, a state can appoint people, requirement that they be
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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. justice breyer: and 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
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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 someone voted properly. justice breyer: if, in fact, he
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changes his residence 10 minutes before he casts his vote, then you could remove him. they can't when in fact, he actually cast a vote. surely someone who cast a vote for jones instead of black has, in fact, changed his mind 10 minutes before. could you not remove him for that preceding change of mind 10 minutes before? 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 that he 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.
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mr. lessig: but again, the constitution gives the states no power to regulate the vote. they have the power to appoint. ray said they can say you must make a pledge to support the party nominee. at the time my client made the pledge they absolutely pledged , to vote for the nominee. the regulation authorized by ray has nothing to do with what you described, the regulation of the vote. chief justice roberts: justice alito? justice alito? justice alito: yes. mr. lessig, my question is similar to justice breyer's. along thet it follows same lines. suppose an elector is bribed between the time of the popular vote and the time when the electors vote. can the state remove that elector?
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mr. lessig: your honor, we believe that prior to the vote, the state's power is the incidental power exists to assure the person who shows up has not -- 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. george mason expressly said the reason not to have electors is that they could be bribed. what the framers saw is that there were two risks, the risk -- electoror 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
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the 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 been bribed, why would the violation of a pledge not be one of those circumstances? mr. lessig: your honor, we have said the bribe is different from a pledge because the bribe is proven separately from how one votes. we recognize there is a capacity to regulate bribery. your question is perfectly framed because i do want to assert that there is no power to remove prior to the vote. the power that comes from one 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
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well. justice alito: so the state cannot create a vacancy 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. there would be a long period of uncertainty about who the next president was going to be. do you deny that that is a good possibility if your argument prevails?
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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 of the 23,507 votes cast who have switched parties against the majority party in a way that could have mattered. the first time it happened was 1796. chief justice roberts: justice sotomayor? justice sotomayor: counsel, you compare the electoral college to a jury, arguing they are structurally similar under the
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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 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. say the juror talks about the case with the other jury members. the judge is empowered to remove that juror. why isn't a presidential elector subject to being removed in the same way? he has made a particular pledge. different than remaining impartial, but he has told the people who appointed him, i will vote in this particular way.
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you call it morally, commit thyself. -- myself. 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. we agree, that 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.
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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 good argument that some of the framers originally expected electors to have discretion. that historical practice offered a practical interpretation of the constitution. that is what ray said. mcpherson said experience soon demonstrated that the electors were chosen simply to register the will of the appointing state.
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doesn't the same principle undermine whatever you think some of the framers expected, the historical practice at least since the 12th 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. two, our argument has nothing to do with expectations. it is the state's argument that hangs on expectations. what we say is that the constitution, as mcpherson says, should be read not according to modern-day expectations, but according to the words the ordinary expected meaning of the words the framers used in the constitution. chief justice roberts: justice kagan? justice kagan: let me ask about those words. most of your argument is
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-- argument depends on a reading of those terms. usually, we think of those terms as involving some choice, but not necessarily. people are electors, people cast ballots at times when there is no choice. think of a soviet style system or think of somebody who has pledged himself to vote because another person is voting on other way. -- another way. why do these terms involve choice in the way you suggest? your honor, we believe, as the way chief justice roberts describes the , best way to understand these words, the best dictionary is the constitution itself. the constitution speaks of elector into context. article 1 speaks to
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what justice thomas referred to as 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 it, the office of the elector, 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. of course the critics said, we articleelector in someone who has freedom and one, discretion, but by article 2, we mean what would be the soviet union description of elector. that would have been possible. 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 elector would have. justice kagan: if that is right, if your reading is very deeply
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contextual, shouldn't we look to what happened in the very first elections under the constitution where immediately, right away, electors associated themselves with political parties, pledged their votes ahead of time and it is now a practice that has continued for over 200 years. if your reading is demanded by dictionaries, but demanded by context in history, doesn't the context in history suggest the opposite? mr. lessig: your honor, we believe the context in history supports the idea that electors were to pledge themselves. we are not saying the constitution required them to be hamilton philosophers. our claim is that the discretion they created in the office of electors survived. look at 1796, where the first faithless election switches sides. this is noticed and objected to and in 1800, that election also
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was by the failure of electors to do what they were expected to. one person said to the jefferson, we should eliminate electors. jefferson said, yes. but have -- 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 later 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 in practice, that would be just like a judge making a promise to a senate committee prior to a confirmation. that would be incredible -- incredibly difficult to imagine enforcing in a way that would be retaliatory against a particular elector.
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justice gorsuch: could a state say we will pay your expenses and give you a per diem for your service, but only if you carry out your promise to vote in a particular way that you 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 -- incidental powers relative to appointment. justice gorsuch: i am not sure i know where you are going so i want to cut to it, if we can. the state, and my last hypothetical is simply saying we , will pay your lunch and travel
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and per diem if you conform to your pledge, your under oath. that is not permissible, but it is permissible to convict an electorate for perjury. mr. lessig: that is right because perjury involves a false statement at the time the pledge is made. in our case, our electors absolutely intended to vote for hillary clinton. justice gorsuch: i'm not asking about your client. just stick to the hypothetical please. 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 difference driven by the substance of the constitution al discretion that electors are given. the federal function invalidated the right to vote.
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justice gorsuch: with respect to the perjury example could the , state remove that individual and not count his vote? mr. lessig: your honor, the 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 if you 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 could structure the statute and succeed in the conviction. the perjury requires a false statement. chief justice roberts: thank you, counsel. justice kavanaugh? justice kavanaugh: good morning. i want to follow up on justice
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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. i think 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 of that is tiny. it 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.
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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. as that happens, laws like washington and colorado ban the exercise of discretion, then votes from those electors could be wasted. that could throw the decision into the house and could flip the result, also unexpected, also potentially creating chaos. 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 in essence, the states versus the electors, in some sense. isn't it also appropriate to
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think of this as the voters versus the electors and that your position would potentially disenfranchise voters in the state? mr. lessig: in our case, the action of the electors was to further enfranchise. justice kavanaugh: as a general wouldn't 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. justice thomas could point to
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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. that 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. chief justice roberts: thank 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 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. the discretion is the same that congress people have when they
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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. facing risks on both sides this , court should do what it can do, which is to interpret the constitution as the constitution was written and it has not been amended. thank you. chief justice roberts: thank you, counsel. general purcell? gen. purcell: thank you. the constitution gives states the power to appoint electors. that power has always included the power to set appointments such as 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
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condition in ray. admits they can impose this condition. the only dispute here is whether states can enforce this condition or any other valid condition of appointment. petitioners say no, that states cannot approve electors for any reason. even if the elector is being bribed or blackmailed 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. constitutional text original , understanding, historical practice in this court's precedent all show that states can enforce appointment like those here. i would like to start by discussing initial understanding. petitioners want you to believe this case creates a conflict between our country's practices and the framers intent. two stubborn facts refute their claim. the framers and their first, contemporaries clearly
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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, repudiating 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 claim that framers viewed the discretion as central and shows the quarrel is not just with our long-standing practice, it is with the framers themselves. their position means the framers misunderstood the role they created. chief justice roberts: could the legislature of 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 clause, limits. in general, states have
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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. 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. the other side's view is unacceptable. today, it seems they are saying that you cannot remove someone
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even if you know they accepted a bribe unless you can somehow move through the criminal process before the electors meet. that is just absurd. 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. chief justice roberts: the state law for electors say that they have to vote for the slate of the party that sponsors them and that they will be certified as electors unless the circumstances after the election have changed to the extent 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.
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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 election process is all 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. lessig's view? gen. purcell: i don't understand the question. chief justice roberts: the
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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, the state has the discretion to replace them and the people know that, shouldn't that be enough? gen. purcell: no, mr. chief justice. the critical point is that if the condition is constitutional, then the condition can be enforced by 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. if you have to pledge to vote, that is a condition. chief justice roberts: justice thomas? justice thomas: to clarify, could you give us precisely some
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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 presidential clause. other than that, states have plenary authority. if the condition is valid and constitutional, the condition
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can be enforced. that is our position. justice thomas: i guess that is why we are here. one other question. i'm interested in what you think and how you would define the scope of the federal function concept? gen. purcell: i think there are 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 a federal interest in the context of 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 elect the president. electors are not federal officers.
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the third point is a historical one. if they are 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 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
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-- congress have never failed to account an anomalous electoral vote? not once. it is always accepted. gen. purcell: i think that highlights congress's view that it should defer to states. in every example the other side has given, the state had certified those votes as the state's votes. if you look at 2016, congress also counted votes from colorado and minnesota where the state replaced faithful 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? justice breyer: i would like you to assume this is my argument.
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for present purposes. the only thing a state cannot do is punish the elector for the way he actually cast his vote. as far as bribery laws are concerned, there are plenty. as far as gratuities, all kinds of things. what he is doing before, accepting a bribe. the only thing is the actual casting of the vote. there, as to that, what would happen, and there have been quite a few faithless electors. for the most part, it hasn't mattered. where it really might matter is if somebody died or some catastrophe happened or worse. there, it might matter. in the one case, congress refused to count votes, which were cast for the person who was promised, horace greeley.
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there is a mechanism in congress to protect catastrophe. mainly, they count which votes they choose to count. the alternative is yours which is, the state tries to control it, which is the greater danger? which is the greater safeguard? to have a congress that will decide what to do with the faithless electoral vote, or to have the state, possibly, who knows what they could pass as a requirement? what is your opinion about that? gen. purcell: there is a lot there. i want to start by what can congress do. congress cannot solve this problem because congress cannot for a state.ector 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.
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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 -- can solve this after-the-fact is not true and it ignores the constitutional delegation of power to the states. turning to your other points, an example i think helps illustrate why there is no constitutional difference between failing to show up and keep 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
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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. washington's prior law did impose a fine for violating the condition of appointment. there is nothing wrong with that. if you look historically before 1800, states had fines for violating conditions of appointment. it is also 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.
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it is quite common with appointed officials that they can face consequences for voting differently than they promised. that is what this is a straightforward example of. justice breyer: thank you very much. chief justice roberts: justice alito? justice alito: does the constitution impose any limits on a state's power to attach conditions to the appointment of an elector? gen. purcell: some. the ones i was referencing earlier. the state cannot impose conditions that would be unconstitutional such as , race-based conditions. justice alito: what else? gen. purcell: as i said before, the state cannot impose conditions that would violate the presidential qualifications clause. other constitutional limitations might come into play -- it is
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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 a state 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. that is what i was trying to answer. that would violate the public's fundamental right to vote once they have been granted the right by the state. justice alito: i didn't quite understand that answer. is a state obligated to choose electors through popular vote? gen. purcell: no. in the early days, the legislature can choose rightly -- can choose electors directly, if they want. in that circumstance, the
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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 12 wise people to be our electors and we are going to allow the public to advise them through a popular vote to give them the sense of what the people of washington want. would that be unconstitutional? gen. purcell: if the legislature made clear that the public vote was entirely advisory, i think that presents a tough question, but i think they probably could do that. the key compromise of the constitution was to leave it to
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states to decide exactly what authority they would have. states were free to decide to leave electors with discretion. 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? gen. purcell: your honor, the 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
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replacing electors for violating conditions since before 1800. states have been choosing electors specifically because of who they pledge to support since the beginning. if the other side was right 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. electors 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. chief justice roberts: justice sotomayor? justice sotomayor: council, i am 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 read my assuming correctly thompson puts a quash
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on relying on the 10th of the situation like this? this is a new procedure that congress intended. the states can't say that they expected or reserved a right 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 in making that argument. we think the fundamental premise of the constitution is that states have -- the federal government is one of many powers. states have powers unless they are taken away. nothing in the constitution restricts states authority to impose conditions on appointment and enforce them. even if that were not the case the text itself gives states the , power to enforce electors. the appointment power 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
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rely on the 10th amendment to resolve this case. i think it certainly -- the background principle that states have powers unless they are limited by the federal constitution is relevant and supports our side. justice sotomayor: you rely on a 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 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 judgment and some measure of freedom, which is the power to cast the ballot. the other side points out that there were other words that
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would've connoted something different than elector, like a delegate. you appoint a delegate to cast a vote for you. that is not what congress chose. 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? gen. purcell: there is really three fundamental problems with the electors argument, a textual problem, historical problem -- justice sotomayor: i do not think it is their problem. i think it is your problem. gen. purcell: none of the cases say anything -- they haven't
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gone with this vertical appointment language. in their opening brief, they didn't mention default rule out -- at all. we pointed out there are a bunch of different cases from the judicial branch. now they have invented this vertical rule that 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 constitutional, statutory cases, executive, judicial branch. 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 a part of another branch of government, that the court has rejected the idea. the court has said these elector s are not federal agents or
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officials. they said that in fitzgerald over a century ago. ofir newfound theory horizontal appointments, it is just not supported by history or precedent. it is a sideshow, frankly. it is not -- it does not help answer. the court has never drawn that distinction. chiafalo v. washington justice kagan? justice kagan general, what do : you view as your best textual argument? gen. purcell: the best textual argument is 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 power, as this court has repeatedly recognized, and we think that certainly by the time of the 12th amendment, everyone understood that electors were being chosen in the states because they had promised to support particular candidates. so the idea that when the framers about amendment use the
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word elector, they inherently meant someone who can exercise discretion, it just doesn't make any sense. that is not how the term was being applied in any of the states. that is not how they understood it. in fact 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. this court said that in ray very clearly. that was a key point of the 12th amendment. if ice sotomayor: 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. gen. purcell: 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.
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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. it's their argument really that asks you to ignore the original understanding and early practice and they are asking you to do that based on words, meanings of these words that are not how the framers and their content is understood them. justice kagan: 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. gen. purcell: i disagree. the court has said repeatedly that the power to appoint includes the power to remove, unless there is text limiting that power, that limitation the court has set will not be implied.
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the only time the court has found otherwise is when there was explicit text limiting removal power. i do not want to emphasize this i think it's at least as point. 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 and 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 but it is 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.
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all that matters is who the 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. justice kagan: thank you, general. chief justice roberts: justice gorsuch. justice gorsuch: i understand 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. but what about the new law that both washington and colorado have adopted, the uniform faithful presidential electors act. i know you are going to tell us it is not before us, so put that aside for the moment.
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i understand it, if an elector renders a faithless vote, that automatically removes him from office as a matter of law and in fact votes aren't even counted until the secretary of state has collected the requisite number of ballots marked for the right people based on pre-existing pledges. is that consistent with the constitution's prescribed order of appointment, meeting and voting? it seems like the voting comes first and then the appointment under the uniform law. and as it also consistent with the federal electoral count act? if you can speak to me about those questions i would be grateful. gen. purcell: certainly. it is consistent because the way the laws work is the elector who takes to violate conditions of their appointment is removed before they can vote. they are not removed before they are appointed.
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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 when in the process the elector announced their intentions, they are removed. there were placed by someone who votes in accordance to state law. 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. both people have violated conditions of appointment. both people can be removed by the state. the other side's position is that neither of those people can be replaced. even the person who says i'm not showing up because somebody gave me $2 million to not show up because that might affect the outcome of the election, the other side says that person cannot be replaced. that makes absolutely no sense
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historically, textually or practically. justice gorsuch: thank you. chief justice roberts: justice kavanaugh. 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 one that says no senator or representative or person holding an office of trust or profit under the united states shall be appointed an elector. what is the purpose you see of that provision if your theory of the electors is correct? gen. purcell: thank you for that western. the framers did not spend a whole lot of time talking about the exact role of electors and they certainly did not agree on exactly what role they would play. one thing they wanted to be
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clear on, they did not want congress choosing 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 chooser on behalf of the state or as many other framers wanted, the electors to be agents of the people. to act on the people's behalf and for the people to choose them and be bound to the outcome the people's preference. ,yes 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. justice kavanaugh: mr. lessig says that the framers considered various modes and you agree, and history shows they considered the states doing it directly or at least that was an idea out there through the legislatures or governors.
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they considered congress but there's a separation of powers there. they didn't necessarily want the 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. he said that 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? gen. purcell: the framers had a
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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, as specifically , because they pledged to support particular candidates. by the 12th amendment that 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.
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the parties put forward presidential and vice presidential tickets and every single elector in the country voted for the party ticket preferred by their states motors. and the meetings were in many states mere 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. justice kavanaugh: thank you. chief justice roberts: thank you, counsel. would you like to take a minute to wrap up? gen. purcell: yes, thank you, mr. chief justice. every four years, over 100 million americans participate in our country's presidential election process. they attend rallies, they watch debates, and ultimately they go to the polls. more americans participate in this election than in any other democratic process in our system of government. but under petitioner's theory, this entire process is irrelevant and always has been because all that matters is who the electors prefer.
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on their view, the electors can choose whoever they want to be president regardless of any voluntary commitments they made to secure their position regardless of how their state , voted and regardless of whether they are being bribed or blackmailed for their vote. that is not the law. the constitution's text, the original understanding and historical practice all demonstrate that states are allowed to require presidential 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. chief justice roberts: thank you, general. mr. lessig, you have two minutes for rebuttal. thank you, mr. chief justice. 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
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appointment power. they were incidental to the appointment power. so you can see obviously that incidental to the appointment power, the state has authority to make sure someone shows up to vote and we believe that general laws apply to electors as well. this is not a general immunity. but they have no power to vote -- to control the vote and they have never exercised that. the state has asserted that because they appoint the electors they get to control the electors. but in fact, the authority they rely on is explicit. myers and page 119 says the reason for those in charge of and responsible for administering 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 imagined the states administering the electoral college. that's why the states don't appear in the 12th amendment at all. and finally, if you recognize this power -- if you find the
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state has the power to regulate electoral votes, may the state forbid 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 appoint justices? open this door, and there is 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 did not have this power. we believe the power has always been with the electorate to exercise discretion. thank you, your honor. chief justice roberts: thank you, counsel. the case is submitted. [captions copyright national cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] white house briefings,
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