For colin powell. They were each fined 1000. The justices have through june to issue a ruling in the case. T cast their ballots under ballots for colin powell instead of hillary clinton. This is an hour and 15 minutes. The honorable, the chief justice and the associate justices of the Supreme Court of the United States. Oh yea oh yea oh yea, all persons having business before the honorable, the Supreme Court of the United States to give their attention with the court is sitting, god save the United States and this honorable court. We will hear arguments first this morning in 19 for 65, the lot below and the others versus the state of washington,. Mr. Chief justice and appease this court, the question in these cases is straightforward to the states have the power to control through law how an elector may vote, they do not, then ordinary expected meaning of the words of the constitution against the backlog of the framers deliberation make it clear that the state has no such power in what is also clear, washington is not like the constitution design, ask this court to read the words elector as agents or maybe better minion and it is clear that the board vote elector is not the constant meaning there vote, the electors vote from article two in washington has effectively give the states of power to cast votes for president in such manner as the legislature. But the actual does not get the states of power to cast both, it gets under gives the states the power to appoint electors. The actual electors of the constitution creates having legal discretion as evie elector does, let him unscented distraction that washington posted to the contrary a completely discretion, just another by moral and political obligation, not by legal constraint, washingtons alternative for best discretion and citizens rather than electors may be a better plan with part of the coherent change but the question for this court is not which plan would be better. The question is which plan is the constitution now in the answer to that question is clear in the constitution text, the state gets to a point no doubt, but they appoint electors who are then privileged to cast their votes without regulation by the state. Do you object that there is no other sanction simply requiring perspective elector take the pledge okay in your view . Absolutely. A pledge understood the way ray understood the pledge having no legal obligation but are more obligation was perfectly fine in that picture as part of the appointment and a power of the state. So the addition of a sanction makes no difference . Know the sanction makes all the difference. So long there is not a legal sanction than a pledge is appropriate. Same in the context of the speech and debate because, of course you cannot punish somebody for a vote in congress that does nothing inconsistent with the speech and debate club asking a member to make a pledge in the states right now asking members to make a pledge of the conditions being a party member. If there were a fine of 1 dollar, you would say that violates the constitution but if it is simply a pledge, no violation at all . That is right because a fine is a legal obligation, it crosses the line because the state has no such power to impose such an obligation through law. So your argument is not that the sanction must have coercive effect, it simply if its only a symbolic requirement, is still violates the law . No your honor, it symbolic requirement, it is an important moral requirement in a more obligation when you take a pledge. But it cannot cross the line to be illegally coercive obligation, consistent with the freedom that the constitution grants electors to vote by ballot. So by illegally core her save you mean Something Different thereby cohosted, if you had 1 dollar that becomes legally cohosted. That is right, with the speech and debate clause, if you find a congressperson, 1 dollar for his speech or his boat on the floor of congress on violates the debate clause, there is no problem with that congressperson to be a member of the public a party to the Republican Party. Under your view, there would be no way to enforce the popular vote referendum. The National Popular vote contacted that we mean. Assuming that gathers enough support in becomes law, there would be no way to enforce it. Your honor, the obligation is required at the state to publi d a state of electors that sits with the National Popular vote, they would then have a discussion that we believe any electorate has but of course if theres a National Popular vote, the number of electorate would be so significant and be very hard to imagine any discussion with ultimate result. Thank you council, Justice Thomas. Thank you chief justice, just a preliminary question, should we ask ourselves whether or not the state is granted the authority to regular the vote of the elector or should we ask yourselves whether constitution prohibits the state. I think you should ask the question both ways and is the same answer, the only argument the state has made in washington and the washington case is an argument grounded in the claim because, the question with the clause is empowered to control even if they do not. But you can look at it from the other side and ask as an elector who is given an obligation to vote by ballot, does obligation entail a protection from legal regulation and we believe as a. Connell debate clause, creates immunity for being punished. When you make im curious, when you make your federal function argument, is not dependent apart on your view that the elector has discretion . The federal function establishes, its exactly the same as in the cases of the state legislatures discretion. To vote under article five amendment. Of course the state Legislature Works for the state and works for the people of the state and subject to the constitution of the state but what they establish is that that state legislature is free of the impositions of the state, referendum or constitutional itself when that legislator votes on article five amendment. That is the same immunity that we think a president ial elector has. How do we determine what the contours of this function of the federal function i would look just at the text, the federal function as we described today is the function in casting a ballot as a 12 amendment describes in any additional steps that the 12 the moment requires which is to name the president , the Vice President and so forth. That is a function with the constitution gives to electors distinct from the power to appoint which way it describes. Does the 12 amendment mentioned discretion . No, the 12th amendment mentions the vote in the courts by requiring that someone make a list of the people that was voted for and implies that theres more than one person that can be voted for but of course the 12 amendment does not mention a state at all, yet the way the state conceives, the state is a proctor stands in the room as the electors cast their vote looking over the shoulder, that is nowhere in the 12 amendment, the state does not appear in the 12 amendment except within electors will meet. And the state remove someone for example, im just wondering what limits and what o authorits they have, can the state remove someone who solicits payments for his or her vote . You can certainly, of course his court has said in fitzgerald, they can certainly regulate corruption and bribery would be corruption and we believe its absolutely clear that the state and government has a power right now. Wheres the authority, where does that come from. It is interesting itself, the United States of course founded in the federal power to protect federal elections from corruption, and fitzgerald versus green they saw as incidental to the power to appoint electors to be able to assure that the election in that case by the people was consistent with law, either of those could create the authority to avoid corruption but of course corruption like bribery is independent of the vote, you dont need to police the vote to be able to Police Corruption just as this beach and debate clause you can convict a congressperson bribery even though the bribery includes the votes may have occurred. Justice ginsburg. I was surprised what they give to the chief about ray. I wouldve thought under your absolute elected discretion the race when it came out differently under your theory. No your honor, we think Justice Jackson in a way was completely right about the original understanding and we think Justice Jackson was completely wrong about what followed from the understanding. The framers did believe that electors would exercise independent judgment, that is absolutely clear but they did not inscribe that belief of the text of the constitution, the Electoral College had that text in the constitution to constrain in a particularly butter constitution and the question was whether the state had the power to discriminate on the basis of political affiliation and loyalty when picking electors and after the 12 the moment we believe that is perfectly obvious, they have the power to discriminate because thats the function that the Electoral College comes to occupy. It is somewhat hard to understand the concept of something i am pledged bound to do, he made a promise to do something, but that promise is unenforceable. I understand your honor, it is difficult until we recognize how it goes. Every single political pledge is of this character, we cannot find a single case in the history of political pledge, pledges been considered of anything beyond a moral obligation, Texas Democratic party, texas requires candidates to pledge to support the candidate and democratic party, that was upheld exclusively on the ground in a moral obligati obligation, we can see that in the concept of congress again, theres no problem requiring the member of the Republican Party to judge to support the Republican Party as a condition of being a candidate for congress, but we understand the speech and debate, you cannot punish them for their vote in the pledge is not inconsistent with the speech and debate clause, its perfectly consistent because the pledge is always unknowingly and moral obligation. Thank you. Justice breyer. Thank you, good morning. Counsel, the state can appoint people, requirement that they be permanent residents of the state that the right is in. Of course. Of course, and then can they say you must be a permanent resident at the time that you cast remote. Yes and then what happens if in fact mr. Smith that is a permanent resident when elected changes his residency and goes to a different state before the vote is cast . Now he is not a permanent resident, he has not met the states requirement, could the state also say in case that happens, we have an alternate who will cast the vote . Yes we believe they can. The difference between that and the 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 does not live up to that requirement just as he did not live up to the requirement that hed be a resident of the state. Your honor, the differences the line between the appointment in the voting, the constitution draws outline and it says that congress can set the time of the appointment and they can set the day on which the vote was cast and we believe incidental to the appointment power is the power of the state to assure there is elector there who will perform the function of validating but once the voting starts, the state disappears, the state does not appear at all except the location of the vote in the 12 amendment, it does not stand there to observe whether someone has voted properly. Given fact he changes his residence ten minutes before he cast his vote, then you could remove him, but he cannot state when in fact he actually cast the vote but truly a person who cast the vote for jones instead of black has in fact changed his mind ten minutes before. Can you not in fact remove him because of the preceding change of mind ten minutes before . No because the pledge is a pledge made prior. A pledge of my hypothetical, its a requirement that he in fact not cast his vote but he in fact is willing to cast his vote for mr. Jones but the majority winner at least ten minutes before, and just tried to make as close as possible to the person who changes his residence ten minutes before. Your honor, the constitution gives the state no power to regulate the vote, they have the power to appoint an incident to the power to appoint lincoln say you must make a pledge to support the Party Nominee and at the time my clients made their pledge, the absolutely intended to vote for the Party Nominee, the regulation that is authorized has nothing to do with what you described which is the regulation of the vote. Justice alito, justice alito. Yes, my question is similar to Justice Breyer or at least that follows along the same lines, supposing elector is bribed between the time of popular vote in the time when the electors could vote, can the state remove the electric . Your honor, we believe that prior to the boat is the states power is the incidental power exist, to assure the person who shows up is not engaged in a criminal activity, its difficult to imagine how that plays out, the claims someone has been bribed is a charged, then needs to be proven so we believe its going to be a difficulty there for the bribery, lets remember that the framers considered this problem, george mason expressly said the reason not to have electors is so they can be bribed, what we saw they were to risk, the risk of electoral bribery and the result of the risk of corruption as madison put it. Your argument either must be that the electors cannot be removed by the state, the state says at least some removal power goes along with the appointment power. I think your argument has to be they cannot be removed or there are some circumstances in which they can be removed and if there are some circumstances in which they can be removed such as when the elector has been bribed, with the violation of a pledge would not be one of the circumstances. Your honor, we have said the bribe is different from a pledge because of course the bribe is proven differently and separately from how one votes, we recognize there is a capacity to regulate bribery. But your question is perfectly framed because i want to assure that theres no power to remove prior to the vote, the power that comes for example the usc for which Congress Gives the power, to feel like they can see what occurs, something power to create the vacancy. That is a structure that upheld the constitution as well. So the state cannot create a vacancy by removing an elector who has been bought. Yes, unlike the bribery statute makes a penalty in the removal from office in the conviction prior to the time at which the vote has been taken. Another question if i can, those who disagree with your argument say that it would lead to chaos, that where the election were the popular vote is close at changing just a few votes would alter the outcome or throat into the house of representatives, at the rational response of the Political Party or element within the Political Party would be to watch a Massive Campaign to try to influence electors. There would be a long period of uncertainty about who the next president would be. Do you deny that that is a good possibility if your argument prevails. We denied the good possibility, we dont deny the possibility, we believe theres risks on either side which is a good reason of the constitutional interpretation, we agree that of course the possibility of this, you can flip electors, but look historically at the number of times that could have mattered in fact in the history of electors, there has been one elector out of the 23507 votes cast in it switch parties against the Majority Party in a way that it could have mattered, that was the very first time it happened in 1796. Justice sotomayor. Counsel, you compare in your brief Electoral College to a jury, arguing that they are structurally similar under the constitution, you cannot remove a juror because of his or her vote. But if that is true, i dont see how that helps you, and your makes all sorts of pledges to be impartial, not to discuss the case with anyone during the trial, not to research the case with the party to tell the tru truth, yet if the jury is selected it violates one of those pledges and see the jury talks about the case with the other jury members, the judge is empowered with others and the other jury members, has the power to remove venture. White isnt a president ial elector subject to being removed in the same way, he has made a particular pledge different than the remaining impartial but he has told the people who have appointed him, i will vote in this particular way, you call it morally commit myself so why isnt that any different than a juror who says i am not going to do this and then does it in a judge can remove it. Your honor, you identified the unit on community that the juror has the vote to convict or not. We agree that is the immunity that cannot be regulated, cannot be punished or fined for both improper according to the court for their ministry. There are other obligations, you are right that you can be held to account for, this is perfectly parallel, the president ial elector has immunity on his or her vote but of course sitting in the elector cannot cause a disturbance, it cannot enter and somebody with a weapon, he could not engage in any number of criminal activity that might interfere with the opportunity to perform the duty, theres a general immunity, particular immunity because in order to vote in immunity from penalty for vote just as the speech and debate clause has cleared. You rely a lot on history in your argument but doesnt mcpherson undermine your position very directly just like ray doesnt some extent, in those cases, the court may clear that whatever the framers expected and here you make a good argument that some of the framers originally expected electors to have discretion the historical since the founding 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. Doesnt that same principle undermine whatever you think some of the framers expected that historical practice at least since the 12 amendment has shown that states have been imposed not just pledges but have imposed fines in some removal of electors. Most states prior to 2016 imposed a fine of the elector. But number two, our argument has nothing to do with expectations, it is the states argument that hangs on expectation, what we say is the constitution as mcpherson says should be read not according to modernday expectation but according to the words, the ordinary expected of the framers used in the constitution. Justice kagan. Let me ask about those words, as i understand it, most of your argument depends on the particular reading of the terms ballot, boat, elector and of course usually we think of those terms as involving some tricep but not necessarily people are electors at least formally, people vote formally and cast pallets at least formally at times when there is no choice, think of the soviet style system. Or think of somebody who has pledged themselves because another person is voting another way. So why do these terms necessarily involve choice in the way that you suggest. Your honor as Justice Robertson described, the best way to understand his words in the best dictionary is the constitution itself, the constitution speaks of the elector into context, particle one is what Justice Thomas referred to as congressional electors and voters. We believe the freedom of congressional electors is exactly the freedom of president ial electors and we understand the authority of this court to establish what the office as Justice Kennedy put in his opinion, the office of the elector meaning the congressional elector created by the constitution and free of constraints, either private constraints or state can train, it is the same sense of elector that the constitution used, the critic said we mean by elector in article one someone who has freedom and discussion by article two weaning what will become the soviet union of elector, that would be impossible, were not saying its impossible to imagine this, were seeing the ordinary expected of these words wouldve supported the discretion that absolutely the framers expected the electors to have. If that is right, if you are reading is very contextual then should we look to what happened in the very first elections under the constitution were immediately, right away electors associated themselves with political parties, pledge the road ahead of time and that practice that is continued for over 200 years. So if you are reading is not demeter but dictionary but instead commanded by context and history doesnt the context and history suggest the opposite. Your honor, we believe the context and history supports the idea that electors wouldve pledged themselves, were not saying that the constitution required them to be hamiltons philosophers, our claim is at the discretion that they created in office of elector survives, yes look in 1796 when the first faithful selectors switches sides, he is noticing adapted to in in the 1800, that election also was a cop located by the failure of electors to do what they were expected to do, gallatin noted to jefferson and said we should eliminate electors in jefferson said lets have an amendment. Justice gorsuch. Counsel, could estate for example asking elector to make a sworn statement as to his present intention to vote for particular candidate, make the pledge and oath . Yes. Could the state later prosecute that elector for perjury if that statement under oath if there is evidence that that was a false statement. The principal, absolutely, we can come practice, that would be just like a judge making a promise to a Senate Committee prior to confirmation, that would be incredibly to imagine enforcing the way that would be talent worry against the particular elector. Could estate say that we will pay your expenses and give you perdiem for your service only if you carry out your promise to vote in a particular way that you pledged initially. Know thats what washington does, and bottles and the penalty as well. Why can they do that if he can do the other thing. Your honor, the difference is the legal consequence or the penalty based on your judgment, federal function which is the control and the other power to appointment, the appointment to make sure sorry to interrupt but im not sure to i understand where youre going, i just want to cut to it. If we can. So as stated in my last hypothetical is that we will pay her lunch in your travel in your perdiem, this gives them to pledge under oath and then thats not permissible but it is permissible to convict in elector for perjury. Thats right, perjury involves a false statement at the time the pledges made, in our case, are electors, absolutely intended to vote for hillary clinton. Im not asking about your client, im just saying hypothetical pubes. Hypothetical imagine that someone has committed a criminal act, they can be punished. But the difference between an electorate that gets compensated based on their vote or not is a different driven by a substance of the constitutional discretion that electors are giving the federal function in the right to vote. With respect to the perjury example, could the state remove the individual and not count his boat . Your honor, the perjury example does not allow them to remove the individual and what we know in the context of other areas the votes have been tainted for bribery conviction which involved the vote in congress and if the vote does not count, its a consequence that separation between the process. I thought you indicated to the earlier questions that you thought it was fine for bribed elector to be removed from office prior to voting. I said if you convict a person prior to the actual voting then you could remove them the same would be for perjury i supposed to . If you can structure the statute and succeed in the conviction but the perjury requires that the time the false statement. Thank you counsel. Justice kavanaugh. Thank you mr. Chief justice, good morning, i want to follow up on Justice Alitos point of questioning and what i might call the avoid chaos principle of judging which suggest if its a close call or tiebreaker that we shouldnt facilitate or create chaos, i think you answered and said has not happened but we have to look forward and just being realistic, doses are going to worry about chaos, so what you want to say about that . Its a good thing to consider your honor and what we said is yes on the one side and you might worry that theres increased risk of chaos as electors have this discussion that we believe they boys had, we think by the time that we given the required electors of the loyal to band together in the last election they took sites. Of course the likelihood of that is small, what weve also said the 20th amendment selfconsciously had electoral discretion in the context of the death of a candidate prior to the vote in the Electoral College, if that happens Like Washington and colorado band the exercise of discretion then the votes from those electors could in principle and that could throw the decision into the house and flip the result in potentially creating chaos, there is chaos both ways in the number of times we had kennedy die twice as frequently as we had electors switch their vote and vote forcibly from the other side. Im sorry to interrupt, i want to get to another question, you said this appropriately as in essence the states first the elector in some sense but is and also appropriate to think of this as the voters versus the electors and that your position when in essence disenfranchise voters in the state. Of course in our case, the action of the lecturers was to further enfranchise the voters. As a general theory, sorry to interrupt, when you position leads to that. It is potentially true, that is right. The last question, the question is not whether the constitution requires the states to bind electors, is whether the constitution permits states to bind electors in on that question, why doesnt the tenth amendment as justice or state authority preexisting authority as Justice Thomas was suggesting common. First of course the state doesnt go by the tenth amendment, if it did it would feel, and for example Justice Thomas could point to tradition that allowed to exercise the power that they want to exercise their, there is no tradition in america, maybe in the soviet union as Justice Kagan suggests, not america, the government exercising control over of order over in elector, that party does not exist, it is not the question of whether it was taken away by the federal government, it was not there before and therefore counsel, you can take a minute to wrap up if you would like. Thank you your honor. The question here has got to both be the constitutional and pragmatic in the constitutional question is the question whether there is a power in the state which comes from the power to appoint and there is not, there is also the question whether the electors as electors, the same sort of electric have a discretion in the discretion is the same discretion which congresspeople have when the exercise of judgment and not to be punished at all under the principles of the debate because, theres also a question we acknowledge are the risks, same thing that they described that this court should do, what it can do to interpret the constitution as a constitution is written and has not been amended. Thank you counsel. General. Thank you mr. Chief justice, may i please the court. The constitution gives states the power to appoint electors, that power has always included the power to set conditions of appointment, requiring that electorate live in the state or show up for the Electoral College meeting. One conditions that states are allowed to impose to promise of the candidate by the states voters. They have been choosing electors on the basis of the founding, this Court Approved an array and the other side admits the states can impose this condition. The only dispute if other states can enforce this position or any other condition of appointment. Petitioner say no, thats what they said in their brief. They say the states cannot remove or sectional actors after appointment for any reason, even if electorate is blackmailed, lied about the eligibility to serve in the first place or even if they refuse to serve in the meeting of the Electoral College, that is not the law as petitioner seemed to acknowledge. Constitutional text, original understanding, historical practice in the course precedents demonstrate the states can enforce valid of an appointment i can. I would like to start by discussing original understanding because petitioners want you to believe that this presents a conflict between the longstanding practices in the framers intent, but too stubborn to ask to refute the claim. The framers in the contemporary clearly understood the states can remove or find electors after appointment, from even before the talk amendment many states have laws removing or find electors for the conditions of their appointment, repeating a central premise of the claim. Second, as this court recognized in a rate in mcpherson from the very first president ial election state to been choosing electors specifically because their promised support of a candidate. This contradicts their claim that the framers do the exercise of discretion central to the role and the coral is not just about longstanding practice and with the framers themselves, excepting their position would conclude the framers and misunderstood the role they had created. General, could the legislature appoint whomever they want to be in elector . There are certainly some limits on discretion and other constitutional provisions such as equal protection clause impose limits but in general states have exclusive authority to appoint electors of appointment. They dont appoint electors in any way before the National Vote and they select the electors that they would like after that vote is not array . I dont think that is all right, i would need a few more facts to know for certain but the risk, once the state has given to the people the right to vote for president , that right is fundamental as this court has recognized, the state legislature cannot override the will of the people appointing electors to do Something Different after the fact. That would not be acceptable. But the state does have the authority to enforce the conditions of appointment for requiring an elector show from the meeting of the Electoral College and the other side, even that is unacceptable. As you heard today im confused about exactly what the but it seems that you cannot remove someone even if you know a bribe unless you can move that the criminal process before the electors meet. That is absurd, is completely contrary to the historical record and it leads to a dangerous consequences theres a huge incentive on the other side of the view for those who want to metal and a president ial election whether be a foreign power were 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 embracing information and try to get them to change and grow. If theres nothing they can do. The state law for electors say that they have to vote for the slate of the party that sponsors them and they will be certified as electors unless the circumstances after the election have changed to the extent that the legislature thinks the electors ought to be changed in other words not unbridled discretion with the legislature but a condition known to the electors before they were selected. Would that be all right . Mr. Chief justice that raises the same challenge under earlier hypothetical, the legislature in this first instance has the power to set any condition with the constitution, once the legislator has given the president ial election, they cannot override that vote in the court. So if you hypothetical, first up against the principal it is not just what commitment are you asking the electors to make but what have you told the public about the role and the underside of the theory, the public role we think of the president ial election process and the campaign in the debate and the rallies in the voting is all irrelevant and all it has been is purely advisory. All they have to do is tell the public that when it comes to electors, were gonna follow the view. Im sorry mr. Chief justice i dont understand the question. The question is, youre suggesting the critical factor is whether the states conduct is based on a condition prior the selection of electors, if the electors know that they have the discretion or the state has the discretion to replace them and the people know that, shouldnt that be enough . No mr. Chief justice, my point is the condition is constitutional in the condition can be enforced by removal or by sanction just as a hasbeen before 1800, if the condition is you have to show for the company, the state can enforce that, if the condition is that you have to pledge for the candidate by the state voter, we know that the valley condition and the state can enforce it. Thank you council, Justice Thomas. Taking chief justice, general, just to clarify, can you give us precisely some of the limitations and restrictions that the state can impose on the electors, i understand that you can require them to show up for the vote, i understand that you have a limit of whats constitutional but beyond that what else limits you. I think those are meaningful limits and those are the limits of this court has said that the power of states over appointment is exclusive, obviously as theyve said the equal protection clause imposes limits and other provisions like the president ial qualification because impose limits such as states cannot restrict of who they can vote for in a way that violates a president ial qualification because, but other than that states have authority to appoint the electors of the condition if the condition is valid, the kids condition is constitutional and it can be enforced. That is our position. I guess thats why were here but one other question, im interested in what do you think and how you would define the scope of the federal function concept. Your honor, i think theres three crucial problems of the argument, the first is not appointed by the cases that they cite, they mention the federal function that there is a federal interest in the conduct of president ial elections. But they dont say or imply in any way that the supremacy clause was strict the state authority over electors. In the whole point of the federal function doctrine is to prevent interference with actions of the federal government and the federal officers and in this context, the federal government does not elect the president and federal electors are not it is a historical one and they were right about the federal function in the state never wouldve been able to remove or sanction electors for any reason and yet we see statutes before 1800 and many states that provided for exactly that for removal or sanction of electors. On the other side theory, those have been unconstitutional in the other side they cannot move or sanction an elector for any reason as far as i can tell from the theory, even if they know the person has taken a bribe, the state cannot remove or replace them, even if the state knows the person is not going to show for the meeting of the Electoral College, the state cannot remove or replace them even though the state has done that before 1800. Even just to understand how the other theory is it is all consistent with the original understanding that it is just not the original understanding that the theory that is government put into practice. Thank you council, justice ginsburg. What do you make of the fact that congress has never failed to count an anomalous electoral vote, not once, it is always accepted anomalous vote. Justice ginsburg i think the highlights Congress View that it should do for two states about the votes that they certified to congress to count, of course in every example the other side is given the state has certified those votes as the state votes but if you look at 2016 congress counted the votes from colorado and from minnesota where the state replaced electors with electors voted as pledged and they counted those votes as well. What you see in the history if they have the designation of which electors are validly appointed by the state. Justice breyer. I would like you to assume of this is his argument or not, assume this is my argument for the present purposes. The only thing a state cannot do is to punish the elect tour for the way that he actually cast his vote. As far as bribery with a concern, there are plenty. As far as gratuity of all kinds of things what he is doing before he accepts the bribe or promise, the only thing is the actual casting of the boat, now there as to that, what would happen and there have been quite a few states of electors, for the most part has not mattered, or it really might matter is if somebody died or some catastrophe happened or worse, there might matter. In the one Case Congress refused to count votes which were cast for the person who is promised and there is a mechanism in congress who can protect her castor fee, mainly they count which ballots they choose to count. The alternative in the alternative which is the state tries to control it, which is the greater danger, the greater safeguard, to have a congress that will decide what to do with the electoral vote or devastate capacity requirement. What is your opinion about that. Justice breyer, i went to address your last question, they cannot follow this problem because congress cannot and appoint an elector for estate, even if congress can reject the ballot, if it found out and knew that the elector had been brib bribed, the state has lost the electoral vote and cannot get it back. The state and congress cannot appoint a new elector for the state industry objected that ballot might alter the outcome. The idea that congress can solve this after the fact is not true and it ignores the constitutional delegation, turning to other points, there is no in example helps illustrate why there is no constitutional difference between feeling to show up in failing to keep her promise, imagine to electors who both do not like the nominee who wins their partys nomination and wins a general election, im not condition o show up for the Electoral College because they dont like this person, the other says im going to show up and vote for someone else, both had violated conditions of their appointment and both can be removed and replaced by the state no constitutional problem without. Theres a difference between the two, and the one case your state is punishing the person for what he does before voting. In the other case, he is punishing him for the way he cast his vote. That is what the other side says is the one thing the state cannot do. First of all how it removes the person before they can vote, washingtons law imposed a fine for breaking your pledge and violating the condition of an appointment, there is nothing wrong with that, they look historically before 1800 states had find for violating conditions of appointment, it is also quite common for appointed official of the state and federal level to potentially face consequences for voting in violation of a promise. For example, the United States ambassador to the un has about in the General Assembly but if they vote differently from how the president directs, the president of course can sanction them or remove them. It is quite common with appointed officials that they can face consequent since for voting differently than they promised, that is issue for an example of. Thank you very much. Justice alito. Thank you council, does the constitution impose any limits on the states power to attach conditions to the appointment of an elector . The one that a reference earlier, the state cannot impose conditions of themselves of the unconstitutional such as racebased conditions for example. What else. As a symbol for the state cannot impose positions that would violate the clause, the other constitutional limitations may come into play, its hard to imagine or basic point, the condition is constitutional and we know this condition is, that condition can be enforced, that the key question, if the condition itself constitutional. Can the state require electors to cast their votes for the candidate chosen in a resolution to satisfy the state legislature after the popular vote is cast . No your honor, thats what our strained answer to the chief justice question as well, that would violate the public fundamental right to vote and violate the fundamental right to vote. I did not quite understand the answer, is the state obligated to choose electors through vote . No, at the beginning in the early days the legislature can choose electors directly at once in that circumstance the legislator can impose and enforce a pledge but once the legislature has given the power to vote to the public, the public has a fundamental right to vote and have their votes counted equally and as i have said in the number of cases, the legislator cannot override the vote after the fact. Why is that so, could washingtons say we are going to choose five full 12 wise people to be our electors and were going to allow the public to advise them through popular vote to give them the sense of what people in washington want, without being constitutional in the legislature made clear that the public vote was entirely advisory, then i think that presents a tough question, but i think they probably could do that, the key compromise of the constitution to leave it to states to decide exactly what authority they would have, states were free to decide to leave electors with discretion as some states did in still do today, some states are free to choose electors on the basis of who they have support as many states did from the beginning and the majority of states. What is the difference between that set up in the set up that mr. Said is required. Your honor, the crucial difference is theres nothing the states can do to remove or sanction electors after appointment for any reason. We are saying that we know from history and we know from ray and the other side admits that this condition of pledging to support the candidate for the United States orders is a constitutional condition, that condition can be enforced like any other constitutional condition. That is our key point. States have been removing and replacing electors for violating conditions of an appointment before 1800, states have been choosing electors because of who they pledge to support since the very beginning, the other side were right about how electors could operate, what you wouldve seen is electors trying to convince them to choose them because of their great wisdom and knowledge, they wouldve said choose me, i will decide on your behalf. That is never ever how american president ial elections have operated, electors were chosen because of the candidate they promise to support, to adopt their view to radically change how american president ial elections have always upgraded. Justice totaling more. Im curious about your views on the tenth amendment, the other side points that two of my colleagues have referred to it, but am i assuming correctly that swanson puts a crush on relying on the tenth amendment to the situation like this, this is a new procedure that congress intended, so the states cannot say they expected or reserved the right and something that they never had. Your honor, we did not argue the tenth amendment but we dont think we need to rely on and we support our colleagues in colorado and make an argument, we think the fundamental premise of the constitution is that states the federal governments enumerated power in their powers and lesser taken away, nothing in the constitution restricts the authority to impose conditions on appointment on electors into enforcement, even if that were not the case, the text itself gives the power to appoint electors and that phrase is repeatedly said, the appointing power in that power is remove all power. Country language in the original understanding has we spend that the appointment power of electors with removal power in the early statute. I dont think the court needs to rely on the moment for this case but i think it certainly the backroom principal that states our powers are mostly limited by the federal constitution. Which is relevant in the supports are side. You rely in your brief which you have not mentioned yet which is the power to appoint into remove, but all of the samples that you rely on our vertical appointments, when an official within one branch of government appoints a subordinate in the same branch for an indefinite period, the idea is, if i appoint you, i should be able to get rid of you if in your service to me, you are doing something wrong. But here the state is appointing a voter to do something that most people think of as requiring judges and freedom which is the power to cast a ballot, that they were other words connoted Something Different that electors like a delegate, you appoint the delegate to cast their vote for you, but that is not what congress chose appointing electorate, they have a sense of someone who is going to vote. How can you say that that tradition with the executive branch of the power to remove is controlling here. [screams] justice, theres three fundamental problems, theres attentional problem, historical problem [screams] i dont think its their problem executor problem. Like i said, none of the cases state anything like what they have this vertical appointment language in first of all it appears in their opening brief they did not mention the default rule at all, they suggested the executive branch and our response theres a bunch of cases from the Judicial Branch and now they invented a vertical role, that appears nowhere in the courts cases, then said in context that the context that the removal power is inherent, it just comes along with the appointment power. You said in constitutional cases, statutory and highlevel officials and low level, Judicial Branch, executive branch. Erie. The not supported by tax by history or their newfound theory of 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. 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. Appoint or whether states can impose conditions and enforce them. We think there is a direct grant of authority in the appointment power as this court has recognized, and waiting everythy by the time of the 12 amendments everyone understood they were being chosen in the states because they promised to support particular candidates, so the idea that when they use the word elector inherently it meant someone who could authorize the discussion. It just doesnt make sense that isnt how the term was being applied in the states that is and how they understood it and in fact the framers quite clearly intended to embrace the system as it had developed where they were pledging their votes and states were choosing to them on this basis. They said that very clearly that was the key point of the amendment. If i understand correctly you are saying you do not have an affirmative argument, but your argument is that the constitution doesnt say and if it doe s should presume that they were meant to decide. The power to appoint there is a text will grant and the central premise of the other sides arguments as the words require the exercise of discretion and that is untrue as a textual matter and its not true as a historical matter. Its their argument that asks you to ignore the understanding and practic practicing they areg me to do that based on words, meanings of these words that are not how the framers and the contemporaries understood them. Isnt the idea that it includes the power to remove highly contextual but it depends on a certain understanding of control which is exactly the question here, sort of assuming the conclusion by saying that. The court has said repeatedly the power to appoint includes limiting the power and that limitation will not be implied and the court has said that in many contexts and otherwise where there was limiting the removal power. So i dont want to overly emphasize this point. I think that its as important and they also clearly understood the states could choose because if they pledged to support. So i think that its the other side that is asking you to rip these words out of context and put more weight on them on these kind of dictionary definitions from how they actually applied in. Its been needed to kind of adopt one possible reading they could have had but its refuted by what they actually did. And also the consequence that everything we think of in the process currently is advisory. Its all irrelevant and they can choose who they want for whatever reason but they cant be removed even if they are taking a bribe were being blackmailed or say im not going to show up. It would radically change how they have always worked in the country. Thank you, gentlemen. Your argument is that thousand dollar fine doesnt diminish or negate the fact that electors are voting and have in some sense had the right to vote thats being offered. But what about the law that washington adopted and i know colorado has depicted the president ial electors act and i know youre going to tell us that its not for the purpose of this question, but as i understand it, and you can correct me, if they render a vote that automatically removes them from office as a matter of wall and in fact the votes are not even counted until the secretary has collected a number for the right people based on preexisting pledges is not consistent with the prescribed order of appointment meaning voting it seems like it comes first and then the appointment. If you could speak to me about those questions, that would be great. Of the elector is removed before him and vote for them when they violate the condition and then they are replaced in another elector and appointed through to follow the law they plan to follo own and keep the promise as directed. So the order is appointment and depending when in the process they announced during tensions they are replaced by someone else thmost of votes in accordah state law there is no difference between the person that says i dont like our nominee im not showing up for the reason to be communing implements as im showing up in voting for somebody else. The state both people violated the conditions of appointment and both can be removed by the state and replaced by someone else. The other side doesnt matter whether those people can be replaced and even a person who says im not showing up because somebody gave 2 million the other side says that a person cant be replaced that makes no sense historically textually or practically. Good morning, general. If you are right about the electors not having this kind of discretion from the constitution i want to get your take on the possessioposition of article twn one that says no senator or representative or Person Holding office of trust in the United States shall be appointed an elector. What is the purpose you see of that position in your theory is correct . Thank you for the question. The framers didnt spend all that time talking about the role and they certainly didnt agree on the role they would play but one thing they were clear on if they didnt Want Congress to apply in so they prohibited members of congress from serving in national but they decide whether they would serve as kind of f. Hamilton envisioned the states choose on behalf of the states i and as many of the framers wanted them to be even if the people to act on the peoples behalf and for the people to be bound to the outcome, to be bound to the peoples preference. So they posed that limitation on who could serve and that is another example of the constitution limiting the authority but it just goes to the point if the state can set the condition to serve that condition can be enforced. The framers considered various modes obviously and you agree they consider the states doing it directly at least that was an idea through the legislatures or governors they considered congress has to just pointed out that theres the separation of powers problem there they didnt necessarily want the new president to be too dependent on congress. The popular election wasnt adopted and so they came up instead with what was described as an interactive mode of selection with a model of electors who would exercise as he sees it their own discretion and independent judgment to pick the best person to be president to head the executive branch and he said that remains in direct consistent with the framers choice only if they maintain a discretion. So on that overall structure that is set up and described, why is he not write given that they rejected all these others . The framers had a number of concerns that included logistical concerns and concerns about the impact on the influence of the states but ultimately they settled on an approach that left it to the states to decide is the court said in the broadest possible power of determination as to how to appoint electors and what role they would play. The framers well understood that and adopted to facilitate that and in the election of 1804 after the 12th amendment it operated just as they had accepted the parties put forth because they supported those tickets and every one in the country voted for the party ticket and in 1804 in many states they were formalities. They filled out preprepared ballots, they didnt discover and they didnt question a single one of the ballots or the validity so that it shows by the time the court had said repeatedly it was to simply transfer the vote of the state. Thank you. Thank you, counsel, would you like to take a minute to wrap up . Thank you mr. Chief justice. Every four years, over 100 million americans participate in the countrys president ial election process. They attend rallies, watch debates and ultimately they go to the polls. More americans participate than in any other democratic process in the system of government. But under the petition theory, this entire process is irrelevant and always has been because all that matters is who they prefer. On the review they can choose whoever they want to be president regardless of the commitments they made to secure the position and regardless whether they are being bribed or blackmailed for the vote. That is not the law. The original understanding, the president in the countrys historical practice all demonstrate the states are allowed to require president ial electors to vote for the candidate chosen and to enforce that requirement. We reaffirm the principle today. Thank you. You have two minutes chief Justice Roberts thank you, general. Mr. Lessig, you have two minutes for rebuttal. Mr. Lessig 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 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 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. Thats why the states dont appear in the 12th amendment at all. And finally, if you recognize this power if you find the 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. Cspan has unfiltered coverage of congress, the white house, the Supreme Court and Public Policy events. From the primaries to the impeachment process and now the federal response to the coronavirus. You can watch all of the Public Affairs programming on television, online, or listen on our free cspan radio app. A part of the daily conversation through washington journal or our social media feeds. Cspan is provided as a Public Service am brought to you today by your television provider. Tonight, on q a, a journalist discusses her book the great pretender about an experiment testing the legitimacy of psychiatric hospitals. He asked why there was this influence on what we contend with today. So much of the Mental Health crisis was touched in some ways by the study and a lot of Public Opinion about psychiatry, and the institutions were in part shaped by the study. I think that in questioning it, we have to go back and question some of our assumption and i hope that this gives us an opportunity to go back and reassess in a way that moves forward because you cannot move forward on a rotten foundation. If the subject if the study was not legitimate, we have to rethink some of the conclusions. Tonight at 8 00 eastern on cspans q a. Caseother Supreme Court now. This one involves the 2015 2016 president ial election and a electors in colorado. The oral argument was held on the final day of a special may session by teleconference due to the pandemic. Justice sotomayor is recused from the case. We will hear argument next in 18 518. Ber nine colorado versus michael baca. I noted i note from the outset that Justice Sotomayor is recused from the case. May it please the court. The constitution authorizes the state to choose their Plenary Authority to remove a broad elector. One who engages in rebellion or one who engages in a bait and
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