Last week, the Supreme Court heard oral arguments by teleconference, and the National Constitution Center recapped those arguments live on C-SPAN with advocates on either side of each case. On this week’s episode we’re sharing the recap for the cases Colorado Dept. of State v. Baca and Chiafalo v. Washington, about "faithless electors" and the electoral college. Those cases ask whether states can penalize or remove a presidential elector because they refused to vote for the candidate who won their state's popular vote. Host Jeffrey Rosen was joined by David Kopel, the research director of the Independence Institute who wrote a brief in support of the “faithless electors,” and Paul Smith, vice president of litigation and strategy at the Campaign Legal Center who wrote a brief in support of the states.
Hear more argument recaps on We the People and our companion podcast, Live at the National Constitution Center. This week’s episode of Live at the National Constitution Center features the argument recap of the cases asking whether President Trump must release financial records to House committees and prosecutors, and you can listen to that here.
David Kopel is Research Director of the Independence Institute; an Associate Policy Analyst with the Cato Institute, in Washington; and adjunct Professor of Advanced Constitutional Law at the University of Denver’s Sturm College of Law. He is a regular panelist on Colorado Public Television’s “Colorado Inside Out”, and a columnist for the Washington Post on the Post’s Volokh Conspiracy law blog. He is the author of The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? Before joining the Independence Institute, Kopel served as an Assistant Attorney General for the State of Colorado.
Paul Smith is Vice President of Litigation and Strategy at the Campaign Legal Center. He has argued before the U.S. Supreme Court 21 times in cases including Lawrence v. Texas, the landmark gay rights case, and Brown v. Entertainment Merchants Ass’n, which established First Amendment rights of those who produce and sell video games, Vieth v. Jubelirer, involving partisan gerrymandering, LULAC v. Perry, involving the legality of Texas’s mid-decade redrawing of congressional districts and Crawford v. Marion County Election Board, involving the constitutionality of a voter identification law. He previously served as a partner in the law firm of Jenner & Block, where he was chair of the firm's Appellate and Supreme Court Practice and co-chair of the firm's Election Law and Redistricting Practice. In addition to Paul’s work at CLC, he teaches as a Distinguished Visitor from Practice at Georgetown University Law Center.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
- Colorado Dept. of State v. Baca and Chiafalo v. Washington oral argument transcript
This episode was engineered by Greg Scheckler and Jackie McDermott, its producer. Research was provided by Robert Black and Lana Ulrich.
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Jackie McDermott: [00:00:00] Hi We The People, listeners, I'm Jackie McDermott, the show's producer. The Supreme Court heard oral arguments by teleconference in the first two weeks of May and the National Constitution Center recapped all of those arguments live on CSPAN. This week on the podcast, we're sharing another one of those argument recaps.
Recapping two cases about faithless electors and the electoral college. These cases ask whether States can remove or penalize presidential electors, members of the electoral college who refuse to vote for the candidate who won the state's popular vote. David Kopel and Paul Smith joined us to recap these arguments. Kopel wrote a brief in support of the so-called faithless electors on behalf of the Independence Institute where he's the research director. Paul Smith wrote a brief in support of the States on behalf of the Campaign Legal Center where he's Vice President of litigation and strategy. So Paul and David joined host Jeffrey Rosen to recap, here's Jeff.
Jeffrey Rosen: [00:01:00] David, we'll begin with you because you are representing petitioners and we heard in the argument that at least in the first case, the petitioner's, represented by Professor Lawrence Lessig went first, tell us if you will, what provisions of the constitutional text do the electors rely on to support their argument that they must have the power under the constitution to exercise independent judgment and that state laws forbidding them from exercising independent judgment violate the constitution?
David Kopel: [00:01:34] The key things I'd say are Article II, Section One which created the original system for how the president would be elected, and then the modifications to that in the 12th Amendment, which was adopted in 1804, and that changed some of the voting provisions, but left most of the left, all of the relevant provisions from original article II intacct and actually repeated them in similar language.
And their, their key words are electors. Because an elector is someone who, as all the dictionaries show, from the time the leading law dictionary, Samuel Johnson's dictionary, everything else. And also, Webster's dictionary of the American English language, from 1828 specifically cited, when he defined the word elector as someone who can make an election and have a choice, he actually pointed specifically to the American presidential system and used them as an example. So their key words are elector, vote and ballot, all of which are the process they go through, which does seem to imply, discretion and free choice. Justice Kagan pointed out, well, you could have a Soviet style election system where there's, you go through the formality of voting in a sense, but that, that's not a real election.
And then the strongest words on the other side, as Mr Smith's, brief pointed out very well are appoint that the States do get to appoint, the electors, and have very wide discretion in that. So the question is, the way I would frame it is, does the word appoint swallow up all the other words, or are those words like elector themselves a limit on, in some sense on how much control the States have over electors after they have been appointed.
Rosen: [00:03:29] You called our attention to Article II, section one and we have the method of choosing electors each state. This is, this is article two, section two. Each state shall appoint in such manner as the legislature may there of direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress. But no Senator or Representative or person holding an office of trust or profit under the United States shall be appointed an elector. And that second part of Article II, section one, clause two, it came up often in the oral arguments and several of the justices asked, well, why is it that the framers exempted congresspeople from being electors? And the response was that was the one people that they did not want to be choosing the president.
Paul Smith, the text of the 12th Amendment was also much quoted, and your brief argues that the 12th Amendment, which was passed in the wake of the failed election of 1800 and recognized the political party system for the first time, shifted the original understanding of electors as exercising independent judgment and presumed that they would follow their party's call and basically be faithful representatives of their party. Tell us about how you think the text of the 12th Amendment is relevant and how you would respond to justice Kagan's conclusion that the text isn't entirely clear either way.
Paul Smith: [00:04:53] Well, the, the key innovation of the 12th Amendment of course, was to require the electors cast, separate votes for president and vice president. So you wouldn't end up with a tie the way they did in the election of 1800 but that all did reflect, and I think this isn't really disputed, the immersions by then, by 1804 of the two party system and the idea that electors were going to be elected for one party or the other, and we're certainly by then pledged very, very frequently to vote for their party.
Well, that was an accepted feature of the system by 1804. And so the argument that the States make here is that in that, in passing that amendment, they essentially ratified a meaning of the word elector that said they can be pledged, they can be bound to support a particular, outcome, the outcome of the vote in their state. And that, States choosing to do that are just exercising their power they had from the beginning under the power to choose the manner of appointment.
Now interpret Justice Kagan's point I think to some extent is right. The states argument is, is partly based on the absence of language in the constitution. There is no provision that the electors point to that says anything about confining the power of the state to exact conditions, but pledges and as I said, those pledges have been in place since the 1790s in as a kind of part of our system. And so, what you end up with here is a linguistic argument between those reliant, as David did, did well you know, the, the meaning of the word vote, the meaning of the word elector, and the absence of something more compelling to really suggest that States are limited in what they can do.
Rosen: [00:06:42] David, there was a case that came up often, and that was a case called Ray v. Blair. It was decided in 1952 and the Supreme Court held that the state of Alabama could require its electors to take a pledge to support the nominee of the democratic party on the grounds that the history was unclear and it wasn't prevented from doing so. There was a dissenting opinion by Justice Jackson, which several of the justices mentioned, and he basically defended the original understanding of the electoral college. He said, no one faithful to our history can deny the plan originally contemplated, which is implicit in its text that electors would be free agents to exercise an independent and nonpartisan judgment as to the men, the best qualified for the nation's highest office. He said that that's been superseded. And then he quoted Gilbert and Sullivan and National Constitution Center listeners know I'm a big govern Sullivan fan. Justice Jackson said "now, electors officially became voluntary party lackeys and intellectual non-entities to whose memory we might just leave paraphrase a tuneful satire. They always voted at their parties call and never thought of thinking for themselves at all." I love that. And Mike, my question to you is that was a dissent that Custice Jackson wrote. So why isn't the other side correct? That basically both historical practice and even the Supreme Court's own precedents in the Ray case and a case called McPherson v. Blacker, which seemed to give States plenary authority to set whatever qualifications they like, why don't they point against your side?
Kopel: [00:08:17] I think they, obviously the Ray case comes up a lot in oral argument and second, I'd like to say why I agree with the way that that was case was characterized in Mr Smith's brief. That was a case where in the Alabama primary, for people who were on the ballot to be running to be the presidential electors at the general election to be on that ballot. And so a guy wanted to be on the democratic primary ballot to run in that race to potentially be an elector. The Alabama democratic party said, well, if you want to run in the democratic primary, you got to take a pledge that you'll support the nominee of the national democratic party for president. And this guy didn't want to. And it came out just as you said, where the Supreme Court said, no, the Alabama democratic party, if they want to require a pledge, that's, that is their legitimate choice. As Mr. Smith's brief, I think points out accurately citing a scholarship by Akhil Amar, a law professor and a great scholar of originalism and of modern cases, said that the court very carefully didn't go over that line and say, therefore, you can force electors to vote in a particular way after they've actually been chosen by the state. There are certainly statements in there where you can take it as an implication and try to run with that. But the court very carefully didn't go that far in the Ray case. And some people, want to argue that what we should take the implication of what they were arguing and take it to the next step. But the key thing is the Court in Ray did not take it to the next step. So it remains an open issue for this current Court.
Rosen: [00:09:58] for that, for helping us understand what Ray decided and what it didn't. Akhil Amar was my brilliant teacher of constitutional law in law school who kindled my interest in the constitution and the his small group leader in that class was Lawrence Lessig who argued today. So I was very proud to see both of them with such power on your side of the case. But Paul Smith on the other side, Justice Breyer was pressing Professor Lessig on precisely this point. And professor Lessig said it's okay to require a pledge but not to enforce a penalty.
Are you persuaded by that distinction and why do you believe that text history and tradition points in the other direction?
Smith: [00:10:35] Well, there, there is some oddity about suggesting that it's okay for the States to you know, make everybody who wants to be an elector pledge, how they're going to vote in advance and then telling the States, but that you can't do anything about it if they just ignore it after the fact.
That creates all sorts of just sort of strangeness about the system. And then the argument moved into these questions about what does, does the state's power to do anything with the electors after the the election day and before the meeting of the electoral college in December, does that, is there any power during that time period for the States to enforce the pledge or do something else? And so we had a lot of discussion about what happens if it turns out that the elector takes a bribe after the election, before the vote. What if the elector says, I'm just not going to show up. I'd rather not cast a vote for this person. And so that forced a series of sort of compromises by professor Lessig in which he had to acknowledge that States, at least have some power to, after the appointment, after the election, before the vote of the electoral college to do things to electors under certain circumstances, which creates a kind of a stopping point problem for him in his argument I'd say.
Rosen: [00:11:48] David, as Justice Kagan put it, this is not strictly an argument that you and professor Lessig are making about the original understanding of the Constitution. Justice Kagan said that might be before ratification, but after ratification, certainly by the time of the 12th Amendment, things switched, she said, and we adopted this new understanding. So are you hanging your hat to use an expression that I think Justice Alito did at one, no that Justice Kavanaugh did at the end, basically on the text, are you saying that the textual meaning of the word elector includes the power to reach an independent judgment that can't be constrained, or is there something beyond that textual argument that's at the core of yours?
Kopel: [00:12:29] Well, certainly you start with the textual argument and our brief was in, for the Independence Institute, which is founded on the principles of the Declaration of Independence, was purely originalist. That there are lots of important issues in this case, but we wanted to give the Court the most solid and comprehensive explanation of the original meaning. And it's not only the original meaning at the Philadelphia convention, and then in the ratification debates after, but then in practices and, and discussion following the ratification. But most importantly, I think in 1804, when the, the 12th Amendment was ratified, all the discussions pro and con about changing the system of presidential election. Do the electors vote for two people at once or do they vote one time for president and then have a separate ballot for vice-president? The pro and con discussion of those two systems in Congress all was based on the explicit statements that electors do have discretion. So of course, they were recognizing that the parties existed. But the point is in eight 1804, those who were for or against the new system of balloting all agreed that electors did have and would continue to have discretion, and they made their Pro, Con arguments for the new system with that in mind. That's impressive.
Rosen: [00:13:49] Thank you for that. Paul, can you respond to David's argument about the original understanding of the 12th Amendment and why you believe that the creation of the two party system in 1800 actually allowed States to constrain or not, electors as they pleased?
Smith: [00:14:04] Right. Well, by the time we got to 1804, the parties existed, they were putting up their electors, exacting pledges from them to be loyal to the party. And everybody knew and understood that that's who these people were, that they had become those Gilbert and Sullivan flunkies. And so the responsive argument is that while there may have, you could pull snippets out of the debates, people understood the word elector in a different way, even if they had a different understanding back in the ratification debates.
And that the lesson of history is that that's the conception that has been in place ever since. Fourty four states did not even put the electors names on the ballot because everybody assumes and understands that the electors are merely placeholders who will cast the votes in favor of the slate that they were pledged to support. And that effectively we have, we don't think of them as exercising discretion. We haven't thought of doing that for 200 years. So it does seem to be ultimately the lesson of history has to be viewed not just in 1804, although I think you could view that history both ways, but with respect to the next two centuries.
And one of the things the Court has done, for example, in the Ray case, is look at how the arrangements have been worked out and how the system has operated and said that can inform the way we read the Constitution. The arguments from the States are, the system is, ought to be understood as giving us all the power to exact these pledges and it works much better if we could enforce them instead of leaving the country open to the possibility of faithless electors overturning the election.
Rosen: [00:15:40] David, Professor Lessig ended his argument with a parade of horribles. He said, if States are able to do so, they might forbid electors from voting for an elector who has not visited a state or released its tax returns as New York and New Jersey proposed their partisan opportunities throughout history, and the history suggests the electors should be able to exercise discretion. On the other side, Justice Kavanaugh said, we generally adopt a principle of chaos avoidance. And if we give the electors this unfettered discretion, then they might be lobbied and bribed and we'd have free for alls is after each election. So tell us more about the horribles that Professor Lessig described, which seemed to be realities in some States, and why you believe that a decision in your favor would lead to less horrible results than the alternative.
Kopel: [00:16:31] Well, I think both sides did a good job of pointing out to their separate parades of horribles, and maybe both of those are potentially true. And it's one of the things that the Court was addressing a lot in the oral arguments, especially the first one, the Washington case, was, as the two sides framed it, they really came in with a very absolutist position on either side with the electors saying, once we're appointed,that's it and the state's got no power over us at all. And then on the other side, the state's coming in and saying, no, our power to appoint is so immensely vast that you may have been appointed in November, and then when you're in let's say, say December 9th actually voting by ballot for the person you choose for president, that ballot can be snatched away and that will be treated as if you somehow resigned your appointment. And I think all the justices seemed to think that those went way too far. And one of Justice Breyer's questions was, can we just focus on the one issue is, can the state punish an elector for the particular choice that the elector makes?
In terms of the potential catastrophes on all sides, one thing we have for constitutional guidance is the 20th Amendment and that that addressed the question is what do you do if, and that was from the early 1930s, what happens if after the electoral college has met and we have the president formerly chosen by them and they've even transmitted the results to Congress, what if the president or the vice president dies? And the 20th Amendment provides a mechanism for how to address that. And it's notable that when the 20th amendment was being passed,they never addressed the issue of what happens if between the general election day in November and when the electoral college meets in December, what happens if the president or the vice president dies then? And the reason is they knew they didn't have to because the electors would be able to make their choices. And so when the electors who'd maybe run on a ticket saying they've made a campaign promise, to vote for somebody now that guy was dead, well then the electors at their December meetings would address that.
Rosen: [00:18:46] Paul, if you could respond to that point, do you think that the 20th Amendment is an implicit recognition of the powers of electors to make independent judgements and then address at least one side of the parade of horribles? Your side was pressed repeatedly, what couldn't States do and the response was frequently well they couldn't independently violate the Constitution. They couldn't discriminate on the basis of race and choosing electors, and maybe they couldn't require the president to visit to turn over his tax returns because that would impose an additional qualification on who can be president in violation of the qualifications clause of the Constitution. So unpack that response a bit for us as well.
Smith: [00:19:25] The first test of the 20th Amendment, the fact that it doesn't address what happens when the elected, the person who wins the election dies before the meeting of the electoral college. I don't see how that in any way indicates that the States are lacking in power to require electors to vote for that person if he's still alive when the electoral college meets. And you know, it seems like what it does is it leaves the States fully in control of figuring out what to do in the unusual event where somebody dies, but it just doesn't inform, I don't think the answer to the question of whether these pledges can be made enforceable if States choose to do so. One thing a state could choose to do, of course, is, make them enforceable and then if the person dies, let the electors figure it out. Or there might be a better written state law, it might have an answer for how that gets addressed by saying maybe you vote for the vice presidential candidate.
But in term of the parade of horribles, it was a little like the arguments yesterday, trying to look for a limit on the power of the house to issue subpoenas. This is all about limits this week at the Supreme Court and, I thought the attorney, the lawyers for the States did a pretty good job of saying, there are some things that we can't do with our appointment power, like racial discrimination and, or alter the qualifications of the president. But in general, we are, it's a pretty unlimited power and, you know, in practice, what it means is that we've all chosen to use the popular election to decide which slate of electors will be selected. And then we choose as well to enforce the pledge that we've exacted from those electors as a condition for them voluntarily taking on that role.
And so it didn't strike me that the parade of horribles against the state side was a particularly effective method of arguing from the justices. On the other hand, the justices including Justice Alito, Justice Kavanaugh, and others seem to be quite concerned about the practical consequences of leaving having the Supreme Court itself announce that electors are free agents, and that the most important practical consequence is that you could have one candidate win the popular vote, win the electoral vote by a narrow margin, and then have two or three electors switch their votes and have the entire outcome of the election change, creating a crisis of monumental proportions. You'd have a president who will actually be lawfully elected that nobody would think was legitimate. That's, that's the big fear hanging over this case.
Rosen: [00:22:03] It certainly was as you say, one of Justice Alito's big fear among other justices. Justice Alito said to professor Lessig, those who disagree with your arguments say it would lead to chaos. In situations where the popular vote is close, it could alter the outcome and throw into the house of representatives. The rational response to the losing party would be to mobilize a mass political campaign to influence electors, and there'd be a long political campaign to influence the electors. Do you deny it's a good possibility? Professor Lessig said, we don't deny it's a possibility, although it may not be a good possibility and said there's only been one elector in history that seemed to meet that situation. So David, maybe you can address Justice Alito's concern about chaos, more directly why wouldn't that happen?
Kopel: [00:22:47] Oh, I think it could. In fact, that's what was attempted in 2016 where there was a big effort to get enough electors who were pledged either Trump or Clinton to vote for neither deny both of them a majority in the electoral college and send things to the house of representatives, which under the 12th Amendment chooses if, if nobody gets a majority in the electoral college, then the house voting by state chooses among the top three. That effort didn't succeed and it wouldn't have succeeded even if every elector who had wanted to switch had been not blocked. There were electorate in in Minnesota, for example, who wanted to switch, but the Secretary of State prevented his vote from being counted. Of course, that th that that could happen. And, and honestly, as a prediction I think that's exactly why I think the, the States will most likely win the case. In my view, the text and original meaning, including original meaning of the 12th Amendment is very strongly on the side of electors being able to elect and make decisions.
But the practice has and expectations have grown up otherwise. And I just don't see a majority of the Supreme Court led by Chief Justice Roberts, being willing to make the large expenditure of political capital it would take to reeducate the American people and say, you know, actually the electoral college is not just a system of points. It's, you really are choosing people who are electors and can make their own discretionary decision.
Rosen: [00:24:20] Paul, I'd love you to add, but I want to note how striking it is that David just made it a mission against interest and said that as he heard the argument, his side was going to lose. And that is striking because this argument did seem clearer in that regard than many of the other ones we've been watching over the past two weeks. And that also leads me to pose to you all a question that Glen Barkin asks, in our Q and A box. Does this case have an ideological curve, David's just suggested it didn't, and he saw a bipartisan majority on your side. Do you agree?
Smith: [00:24:51] Yeah, I don't think it has a political salience in the sense of modern Republican versus Democrat so much. With respect to constitutional methodology, the debate could come down to people who really believe in originalism and accept David's well phrased argument. And those who are more practical and think the subsequent operation of the system for 200 years ought to have more to say about it. And I think that was when Professor Lessig was trying to appeal to is the originalism of the more conservative wing of the Court. And he didn't seem to be getting too much attraction, although I must say, unlike David, I find the Court hard to read with these, the way they do these telephonic arguments, everybody getting their three questions in two minutes. One thing it means is that every justice feels compelled to ask a hard question to both sides. Usually the way you read the Court, is you say, who's not saying anything or, only asking really softball questions. And so I tend to agree in the end of the day that the Court is unlikely to want to subject the country to the risk that the election would be overturned by people that, whose names they've never heard of. And the kind of campaigning that might go on in the event of a very close election, but it's not certain given the format and the difficulty of sort of figuring out where the justices are in that format.
Rosen: [00:26:11] That's an interesting observation about how this new format has made it harder to read the Court and you're quite right that the traditionally the justices asked most questions of the side they were most skeptical of. And now since everyone has to ask tough questions of both sides, it's more even handed in that way. But David, unlike the Supreme Court, we in our C-SPAN National Constitution Center, discussions can be guided by pure, first principles and you can try to persuade our viewers why you still should win even though you may not before the Court. Another one of your arguments, or at least that of Professor Lessig and your side is the federal functions argument. And the briefs argued that electors exercise a federal function when they vote for president. And a federal function may not be interfered with by a state. Never before has a state tried to control how an elector shall vote. Tell us what that federal function argument is and contrast it with the 10th Amendment argument on the other side that the States have reserved powers to command their electors as they please.
Kopel: [00:27:12] Sure. So the, the federal functions argument, the most foundational case for that is the McCulloch v. Maryland, where the federally chartered bank of the United States was operating, and the state of Maryland wanted to impose a tax on certain operations of the bank within Maryland, and the Supreme Court said, no, you can't do that that's a federal function, you can interfere with that. And so there's a lot of back and forth in the briefing, which gets quite intricate is, are the electors performing a federal function or in sort of the most extreme view on the other side, Colorado says, oh, no, they're, merely minor state officers under the complete control of the state government. The text of the Constitution seems to go, at least in favor of the more federal side in that, once the States appoint the electors, which they have very wide discretion to do, the States don't have any further role, at least according to the text of the Constitution. And even if you indeed look at the the federal statutes that have been implemented for the electoral college, a number of which were mentioned from Title Three of the U S Code, the electors basically run themselves. They're the ones who are responsible for meeting and for certifying and for sending their results to Congress. You've had things where, the Colorado Secretary of State stepped in, said, no, I'll take care of sending in the results. But under the statutes, that only happens if the electors for some reason, don't send in their results by themselves. The 10th Amendment states the principle that our federal government is one of enumerated powers, the only powers the federal government has in the Constitution are ones that are specifically given to it. And that other powers are reserved to the States as their traditional powers, cause they do retain a substantial amount of sovereignty. The argument we made in the brief is, yeah, that that's completely true, but before the Constitution was ratified, the States never had any power over presidential electors to begin with. Cause presidential electors didn't exist. They were created purely by the US Constitution. So States have no reserved or implicit powers over those electors, for which they can point to the 10th Amendment as a source.
Rosen: [00:29:41] That's a very helpful explanation and as you just said, very clearly, the 10th Amendment only reserves powers that the State is having at the time of ratification, reserving any powers that aren't explicitly granted and to that degree, since this power of electors didn't exist before the Constitution was ratified, as you said, the argument is the 10th Amendment doesn't cover it. Bonnie Zedick asks, why would we exercise our right to vote if we knew that our vote was merely advisory and electors held real power, wouldn't that disenfranchise voters? Paul Smith, a version of Bonnie's question came from several of the justices and the answer to some degree was that States can reserve the power on their own and claim in advance that the popular vote is merely advisory, but once they say that they're going to abide by the result of the popular vote, then the right to vote as recognized in cases like Gray v. Sanders, kicks in and requires them to respect the result of the popular vote. Tell us more about that argument and the Gray v. Sanders case.
Smith: [00:30:41] We had a couple of different hypothetical questions about whether or not it would be constitutional for the legislature of a state to say, we're going to pick the electors. The election's not going to have anything to do with who they are, and we're going to run a vote on November 3rd that will simply indicate to those electors what the views are of the people of the state about who should be president, and the electors will be told, you can take that into account if you want to or ignore it if you want to. You are in charge. It's a purely advisory vote. And the answer I think correctly was that in theory, that would be possible. The Constitution after all doesn't say you have to have a presidential election, at least that's what the Court said in Bush v. Gore. And it's actually true. The legislature can decide, we're just going to pick the electors and run a vote as a kind of plebiscite.
But what that has to do with the case, is a little unclear to me because basically what we have here is a system where a state says an advance, we're going to have the Democratic electors over here and the Republican electors over here, the Libertarian electors over here, and the people are going to vote, and whichever one carries the state will be, those electors will be sent to the meeting of the electoral college pledged in advance for that candidate. And so obviously the voting in that context is meaningful. In fact, it's meaningful even if it's an unenforceable pledge because the parties presumably pick people who are likely to be faithful, not faithless. But it does make the vote still ultimately not controlling if the electors can in their discretion ignore the outcome despite the people having been told you're, you're in charge and the electors are simply going to carry out your wishes. And so that is a problem for the Lessig position. And the other problem he got into was, he had to concede ultimately that States do have powers as to the electors after the appointment. That the power of appointment does include some power of removal. And once you breach that line, as he ultimately did in the argument several times by saying, if somebody was convicted of bribery while before the electoral college meets, or if somebody perjured themselves by swearing they'd vote a certain way and then not doing it, they could be removed for that.
Once you breach that line, it's very hard to say, but they can't remove you for trying to cast an illegal vote. And so I think that the argument to that extent ended up making the position of the electors more murky and I think the concession may have been fatal for them.
Rosen: [00:33:22] That's interesting. And you're quite right, there was extensive discussion about the extent of the removal power and Justice Sotomayor was pressing about whether the relationship had to be vertical. In other words, the president can remove officers that he appoints, but if it was a horizontal, equal relationship, could it exist? But you think it cut against the other side. You also mentioned the Bush v. Gore case, and one case that Bush v. Gore relied on very heavily was McPherson v. Blacker, which was the other case, in addition to the Ray case that I mentioned that got a lot of airtime in this argument. McPherson v. Blacker was decided in 1892 it involved a law passed in Michigan, which divided the state into separate congressional districts and gave all the electoral votes to the winner of every district, and the Court in McPherson v. Blacker, essentially held that the state had plenary power to choose its electors as it pleased. David, tell us about the significance of McPherson v. Blacker and why you think it cuts in your favor.
Kopel: [00:34:25] Well the rule of McPherson v. Blacker is still in effect today. So States if they want to, can divide their electoral votes by districts. So in Nebraska and Maine, Nebraska has three congressional districts, so one electoral vote to each winner of a particular district, and then two electoral votes to the statewide winners. So that's how Barack Obama got one electoral vote out of Nebraska in 2008 by winning the, the Omaha district. That's solid law as far as it goes. And along the way there are some statements about the broadness of the States appointment power, that it's vast, it's plenary and all that. And I think that's true, based on the text of the Constitution. The question is just, some would do what I think is trying to bootstrap the power to appoint into the power to control after appointment. Some people take some language from other Supreme Court cases that say, well, the power to appoint necessarily includes the power to remove. And the justices didn't really seem to go for that. Obviously the power to appoint federal judges does mean you can't control their decisions. The power of state legislatures or governors, to appoint senators, which they had prior to the 17th Amendment. Governors, can still appoint for vacancies, obviously doesn't include the power to remove. And the people on the other side who favor the removal power will say, well, that's only because there are express limits on removal. So for example, a Senator has a six year term and that tells you he can't be removed after being appointed just because you don't like the way he voted. Well, I'd say there's that same textual limit for the electors themselves, and that textual limit is elector. The point is an elector makes a choice and you can't punish or remove an elector for making a choice.
Rosen: [00:36:18] Paul, as you said, insightfully this case, like the Trump subpoena case, was about limits. We've talked about the limits that your side confronted about whether or not a state could require a candidate to visit the state or to disclose tax returns. The other side was pressed about are there any limits to electors discretion? Chief Justice Roberts said, can an elector just flip a coin? Yes, the response was that's what senators can do. They can cast their votes based on flipping a coin. Chief Justice Roberts said, that seems pretty limitless to me. Justice Thomas, and this was a wonderful hypothetical, he said, what if an elector says, I want to vote for Frodo Baggins, that character out of a Tolkien, under your system, he could do that. And the answer was, Frodo Baggins isn't a person as much as some people may be a fan. So what did you make about those hypotheticals and did you discern in them any sympathy for the other side?
Smith: [00:37:10] Well, I think to some extent, yes. I mean, they were coming from, especially from who they came from, the notion that somehow these people have complete discretion to vote for their brother-in-law or anybody else that apparently except somebody alive, it has to be alive. The council noted that some votes were cast for Horace Greeley after he had died. Congress didn't count those. I think in the end, the votes were under their theory that the votes for Frodo Baggins would have to be, probably have to be accepted because they don't think that the state has any role in even supervising the voting, it would then go to the Congress and if Congress would presumably discount the vote for Frodo Baggins and the state would lose one of its electoral votes, an outcome, which really is hard to defend because you know, each state has the right to have its electoral votes, the ones that are allocated to it under the system, cast and counted. And so one problem even with the Frodo Baggins one is that it ultimately leads to, the only place where that vote gets disqualified is at the congressional level. And as General Weiser pointed out, the Congress can't appoint somebody else to cast a different vote at that stage, only the state can appoint the electors. And so effectively what happens, you have one less elector.
Rosen: [00:38:31] Both Justice Ginsburg and Justice Breyer emphasized Congress's power. Justice Ginsburg said, what do you make of the fact that Congress has never failed to count an anomalous electoral vote? Not once. It's always accepted the anomalous vote. And then Justice Breyer said, as far as bribery, in one case, Congress refused to vote, which was cast for Horace Greeley. So there is a mechanism in Congress to protect against catastrophe. And why isn't that enough of a protection?
Kopel: [00:38:57] Well, it certainly is an important protection. And the one of the, back to Horace Greeley, who died between after losing in a landslide in his challenge to incumbent President Grant, died before the electoral votes were there. And as the pro-elector side has pointed out, if you took these state statutes and fully enforced them, then the person still pledged to vote for the guy candidate who's dead. And I'd say it relates to sort of the same issue as Frodo Baggins, which is, I think it's perfectly appropriate for a state to say, you have to vote for somebody who is constitutionally eligible to be president of the United States. So you can't vote for Frodo Baggins because A, he's not alive. B, even if he wore, he wouldn't be an American citizen. So, could you vote for Sasha Obama? No, you couldn't because she's not 35 years old. Could you vote for, but could you vote for anybody who meets the constitutional qualifications to be president, which includes being alive and being over 35 years old, and being a natural born American citizen? The answer is yes. And Congress has never refused to count any votes for people who are actually constitutionally qualified to be president.
Rosen: [00:40:09] Which justice would you say was most sympathetic to the other side and why?
Smith: [00:40:14] I actually find that a hard question to answer. There were some hard questions asked by some of the more conservative justices, but I don't think I could identify a single one of the justices who I would say is firmly in the column of the electors. I think that partly as I was saying, the format makes it a little harder to read. They all asked questions of both sides. But you know, even the ones that you might have thought would find the originalist argument most appealing, seemed quite concerned about practical consequences and about the unlimited amount of discretion being exercised by these electors and the problems that could arise. And then there were these concessions made by Professor Lessig that there is some role for the state to play after the appointment before the vote. For example, if an elector says, I'm not going to show up, I would rather have no vote for this day, then have to be voting for the person who won the election. They concede that the state can replace that person and I think there's a concession with respect to at least a convicted bribed elector. I query why would have to be a convicted bribe? If the person is known to have taken a bribe there ought to be a way to replace that or that he came pretty close to conceding that as well. And so, I mean, I think given those concessions and given the fact that there was no, it didn't seem to be anybody really campaigning, thinking this was a really good idea among the nine justices. I don't really think I can name somebody. I know maybe David has a more insightful view of this.
Rosen: [00:41:52] Well, David, I will ask which justice you thought was most sympathetic to your argument, and I'll offer Justice Gorsuch did say if a thousand dollar fine doesn't change the way an electors voting, what about this new law in Colorado and Washington, the Uniform Faithful Presidential Electors Act, where if an elector renders a faithless vote, that removes him from office as a matter of law and votes aren't counted. Is that consistent with the Federal Electoral Count Act and with the Constitution?
Kopel: [00:42:20] I think, Mr. Smith said that there are good, in this current format, the justices really work hard to pose the most challenging questions of particular interest to the advocates on both sides. So it's harder to get a read on either direction on where they might be leaning on their votes. But what I think is an important thing is there was also discussion about standing and whether the Court should decide these cases. I really hope they do. I hope this isn't one of the cases where, you know, they say nobody has standing or we don't have jurisdiction or whatever.
This issue should be decided now and not in December, 2020 or January of 2028 or sometime when it's in the middle of a contested presidential election where the Supreme Court decision would decide the outcome of the election. Win or lose, it's really important to have clarity in advance.
Rosen: [00:43:17] Paul, your brief for the Campaign Legal Center. I think I can disclose that David just painted a high praise and thought it was one of the best briefs in the case. So congratulations for that. I want to make sure that you get out before our listeners all the main arguments in it. You begin by saying the Constitution grants States plenary power to appoint presidential electors, which includes deciding the method of appointment. And that for that reason, the Court should reaffirm each state's plenary authority to determine its method of appointing presidential electors, which includes imposing conditions on the appointment. Any other crucial parts of that brief that you want to share with our viewers?
Smith: [00:43:53] Right. I think that the other sort of possibly unique contribution we made is to point out that if you're going to give this kind of authority free agent authority to these electors, they suddenly become among the most important, powerful people in the country for a short period of time, every four years. And if you were going to do that, at a minimum, you would want to have the kinds of disclosure laws, conflict of interest laws, gift restrictions, bribe, federal bribery laws. All of those things apply. But in fact, none of them do apply. And in fact, it is perfectly legitimate that somebody could be any employee of the Russian government secretly, it wouldn't violate anything for them to then be electors at the same time. And so, you know, one of the things we said was, look, if this is what we're going to really say is true, we need some time for Congress to at least address those kinds of things. It doesn't, they wouldn't fully solve the problem because, if the Court has said the States are powerless to actually enforce the pledges, that's going to be a problem. But at a minimum, you want to have the kinds of safeguards that exist for every other important federal, governmental official to try to assure that they carry out their responsibilities in the interest of the country and not in their personal interests with a kind of corrupt motive. Those things don't exist.
Rosen: [00:45:17] David, would you like to respond to Paul's argument that some kind of safeguards are necessary as they are on other high officials. And then let me praise your superb brief for the Dependents Institute, which was a model of thoughtful originalist arguments. And you argued that the 1787 constitutional convention knowingly copied existing electoral models in which elector discretion was protected. Share with our viewers, if you will, any additional historical details that you found that you think are relevant to the case?
Kopel: [00:45:47] Sure, so a lot of the, by the way on Paul's brief, it was actually when I was reading that to prepare for this program that I said, Oh boy, I think I know who's going to win this case because, and it's notable that on some of his strongest points, the pro-elector reply brief didn't even really attempt to address them.
And so he suggested that if we're going to do this, the Court should stay the effect of its mandate until after the 2020 election to give the federal government time to set up the kind of a prophylactic anti-bribery laws and things like that I think would make a lot of sense. I think one of the things we tried to add was there is some people say, Oh, the whole idea of, of electors having discretion that was just thought of by Alexander Hamilton in Federalist 68 and that's just his little idiosyncratic pet notion. And that's just not correct. The idea of electors was proposed in the Philadelphia convention by James Wilson. Future, one of the greatest, according to George Washington, probably the greatest lawyer in the country at the time. And he and the other delegates look to, first of all, the Scottish model, which Wilson was Scottish, an immigrant, where members of the house of commons from Scotland were chosen by commissioners who were the commissioners were locally chosen, and then the commissioners on their own discretion by their oath had to make their own independent decisions to choose the men who they say would be the best members of parliament. And more close to home, that's similar to how the Maryland state senate was elected at the time, was that the house of representatives was directly by the people and the, but the Maryland state senate was through this system of electors, which very expressly called for discretion. So this was not some, you know, just thing that came out of a character from a big musical these days. Electoral discretion is a much bigger, broader, and very widely accepted concept, whether you liked it or not then than just the mere idea of Alexander Hamilton. He was reflecting conventional wisdom and not, advancing theory in any way.
Rosen: [00:47:59] Thank you very much for giving due to that heroic, forgotten founder James Wilson of Pennsylvania. He was maligned in another musical 1776 where he was treated as a kind of comic character. But in fact, as you said, he was the great genius of the convention who came up with the idea that we, the people of the United States as a whole are sovereign rather than we, the people of the individual States. The constitution center just did a great program on the electoral college with William Ewald, a James Wilson scholar at the University of Pennsylvania, who noted, as your brief does that Wilson originally wanted popular election of the president, accepted the electoral college as a reluctant compromise and, well, let me stop there and ask Paul Smith, do you believe that James Wilson, given his devotion to popular election of the president and popular sovereignty, would have wanted to constrain the discretion of electors to deviate from the voice of the people or not?
Smith: [00:48:54] Well, you could, it's a little hard to put thoughts in the head of a framer like that, but a person who believes in popular election of the president and accepted the electoral college only as a compromise would think of wanting to safeguard the ability of the States when they choose popular election as their method of appointment to be able to have the election results, be reflected and the electoral votes cast six weeks later. Otherwise you have, you know, you've not only taken away popular sovereignty by having an electoral college, but then you empower the electoral college to disregard the election results. And that's a double whammy, I would think.
Rosen: [00:49:35] Well, it is time for closing arguments in this wonderful discussion cause I need to give a couple of closing thoughts after that as succinctly and precisely as you can. If each of you could just tell our great viewers why you believe that your side is correct under the Constitution. So we'll begin with you, David Kopel, why do you believe that the original Constitution and as amended by the 12th Amendment, prohibits States from constraining the power of electors to vote their conscience as they please.
Kopel: [00:50:05] Well because whether you call the Constitution original or whatever the words in it are what they are and the words of elector, electors and vote and ballot all necessarily imply the ability to make a choice. So it's really just the constitutional text recognize that as one of the callers pointed out, popular understanding has certainly deviated from that. And so while I think it's unlikely the Court will want to spend enough of its political capital to reeducate the public back to what the text really does, literally say, and was the original public meaning as the public in general understood those very ordinary, and non-specialized words. That is what the constitution says. And what we try to do in our brief is, you know, everybody needs a lawyer and we feel in a constitutional case, it's at least fair that the text and original public meaning of the Constitution get a defense for what they are.
Rosen: [00:51:04] Thank you very much for that, David and Paul, last word to you. Why do you believe that the text of the Constitution as well as Supreme Court precedent and practice, do not prohibit States from constraining the choice of electors and requiring them to vote for the candidate they've been elected to vote for it?
Smith: [00:51:22] Well, first of all, I would say the textural argument is far from one sided. It's certainly true that some of the framers said they anticipated that electors would be acting with discretion, but they didn't put anything in the Constitution that made that explicit. And they gave the States a great deal of authority to decide the manner of appointment of the electors, they basically set it up so the electors are casting the state's votes, and given that it's pretty naturally assumed that they would have some ability to make the electors follow the rules.
That said, the other piece of it is we've now gone two centuries or more with the understanding that the electors will in fact follow those rules will reflect the vote in their state. There've been a very, very small number of faithless electors in the history of the country.
Never really done anything to threaten the outcome of an election. The States are not even telling the voters who they're voting for with these electors names, and given the risks of a catastrophic election meltdown, if the electors were to actually change the outcome of the election. I think that the better part of valor here is for the Court to do what David thinks they're going to do, I think, which is to say we're not going to upset the apple cart after all these years, and we're just going to leave the system in place as it is.
Rosen: [00:52:45] Thank you so much, David Kaplan and Paul Smith for a marvelously illuminating and educational discussion of this fascinating case. And dear viewers, you can read their briefs as part of your final homework for understanding this case before the opinion comes down. And then of course, when the opinion comes down, whether it's in June or later, I want you to read it and read the majority opinion, and if there's a dissent, read the dissent and if there's a concurrence, that's a separate opinion that agrees with the majority for different reasons, read that too, and make up your own minds about which argument you find most compelling. You've now earned the right to do that because you've joined in this great enterprise of constitutional self-education listening closely to the arguments on both sides, recapping them, reading and growing in wisdom.
I'm so grateful to you. Dear friends, C-SPAN friends, National Constitutional Center friends, fellow learners for having embarked with us on this great educational experiment. We didn't know whether Americans would be eager to join us in taking the time to engage with these cases on constitutional terms.
I am blown away by the rigor of your emails, your questions, the precision with which you're engaging these hard questions and also with which all of us are watching the Court at its best, do it's important work. I have to end by urging you to continue your constitutional education. It is urgently important that you continue to grow in wisdom. The constitution center stands by ready to help you. We are offering weekly live classes on the Constitution every Wednesday, Thursday, and Friday at 1:00 PM, which you can tune into. We have our weekly, "We The People" podcast where I convene America's leading experts just like Paul and David every week to discuss the constitutional issue of the week.
We have town hall programs that discuss these questions live, and it's just a cornucopia of opportunities to spread light and to cultivate our faculties of reason. But I do have to end with this. You see the majestic building behind me on the fake backdrop. In fact, it's closed right now as so many public institutions are, we have no admissions revenue for the period of closure, and we are waiting for the time we can reopen. We are a private nonprofit. Despite our inspiring charter from Congress, we receive little or no government money and we rely on the support and engagement of learners like you from around the nation who are willing to join us in this great mission, this urgently important crusade for nonpartisan constitutional learning.
So I want you to go to the website, constitutioncenter.org and sign up and become a member. You can do it for a dollar, which is the amount that electors or fined in some States, for not voting way they're supposed to, or $5 or of course more if you can. But the crucially, important thing is to signal your membership in this community of lifelong learners, which really is open to all Americans of all backgrounds and perspectives so that we can join together.
And unite around this great document of human freedom, which unites us, which is the US Constitution. So let me thank my great constitution center colleagues Tanaya Tauber, Lana Ulrich, the great AV team for having made this experiment possible. Thanks to our wonderful friends at C-SPAN, Terry Murphy, Susan Swain, and they're a great team for having engaged with us in an experiment, which has, I've said repeatedly throughout the week, Justice Holmes said, the Constitution is an experiment as life is an experiment. And this educational experiment, I think has vindicated the founders hope that the American people are able and willing and ready to converge around challenging constitutional arguments and debate them. Setting aside our passion, guided always by the cool light. Of reason. So thank you so much, friends. It's been an honor to be part of this conversation with you and I'll look forward to seeing you at the constitution center's website and our virtual programs very soon, and once again, a big thank you to Paul Smith and David Kopel.
Thanks to all. Stay safe and see you soon. Bye.
McDermott: [00:56:53] This episode was engineered by Greg Sheckler and me, Jackie McDermott and produced by me. Research was provided by Robert Black and Lana Ulrich. Please check out more of our Supreme Court argument recaps on last week's episode of "We The People" and on our companion podcast "Live at the National Constitution Center." This week on "Live at the National Constitution Center", we shared our argument recap for the cases, asking whether President Trump must release his financial records. You can check out that episode and the rest of "Live at the National Constitution Center" wherever you get your podcasts. And as always, please join us back here next week on "We The People." On behalf of the National Constitution Center, I'm Jackie McDermott.