Contrast, rather than as proxy voters, it is free to do so. In short, states determine how to select a electors and ensure they meet the relevant requirements and perform their duties as assigned. This means that states can oversee bribery as an incident, as a power to appoint. Tos must include the power remove and elector without a criminal trial. Under my friends position, as a practicality, ride electors would cast ballots and even legal votes. The state prevented him from casting a legal ballot. As this court explains in ray, the purpose and history of the 12th amendment reflected the reality that electors acted as pledge agents and the history of such pledges should be given great weight. Point,ustice ginsburgs and it is worth noting that people rely on such pledges taken voluntarily. Be of requirements would little value if not enforced. In almost 70 years since ray, states have continued to an act loss. Congress has consistently deferred to the Plenary Authority and no court other. The mr. Chief justice, i welcome your questions. Asky first question is to if there is anything that the with whichcell said you disagree. I would only add a slight wrinkle. He did endorse our 10th amendment argument. Is anth amendment important interpretive principle. Could you state for me what you think the limits on the state power to replace a lack ors are. Echo my colleague from washington. Whether or not another constitutional provision is violated. The 14th amendment needs as state could not remove and elector based on race or religion. And the qualifications clause means you cannot remove electors for the purpose of adding qualifications to who can be president. Electors ift one of the requirements is that they had to be relatives of the legislators, that would be all right . Your honor, in colorado we pick we pick a electors. As long as the choice does not violate the constitutional provision, they can pick whoever they want. What if the electors are chosen pursuant to slates. But anyone that says anything disloyal to the state between the time they are selected and the time they cast their vote will be replaced . As my colleague from washington noted, once people are voting to make a choice, people have the right for their ballot to be counted. In this hypothetical, the balance of people would be invalidated after the fact which implicates gray versus sanders. And other limitations on the power of the state . Casesbout the bribery were bribery hypotheticals that have been discussed. Thank you. Bribedlity to remove electors is crucial for the state to have and not just after a criminal trial but after they are the basis of this concern. To remove aails bribed a elector, the state would not have violated the constitutional provision per se that it would have violated the duty as a sound overseer. Cracks in even after the electors have been chosen. Go ahead. S the state is indeed authorized to remove electors that have taken a bribed if that is your question. Yes. What about your power to appoint argument . This has always been with respect to inferior officers. And the electors here it seems in anyre not inferior way to the state legislator. As appointeeshts carrying out federal responsibilities as well. I dont see how that supports your position. We disagree. The constitution gives states plenary power over electors. Means if electors were to take a bribe or not show up, it is on the state to address that point. Left this to congress in the final instant, it would mean that all congress can do is remove the elector. But the state can do is replace thatlector and make sure the state has a constitutionally authorized vote in the Electoral College. The states play a Critical Role and that includes the power to ve removed from an elected office. Honor, the cases involving removal from elected office like powell for example involves an official with a salary. What is unique here is there is no salary or personal injury. Whats at issue is the institutional role itself. As this court made clear in smith, an individual doesnt have standing to challenge an institutional role that he or she may believe is unconstitutional. So in a removal case, at what point do you think there would be an injury in fact . Insofar as someone gives up a salary, you have injury in fact. On a separate issue, throughout our history there have been not pledges among electors. Can you point out to me the first state law that required pledges in our history . I can. It was oregon that did so in the late 19 teens. What i want to underscore is that wasnt the first time and elector was removed. In 1912, nebraska did remove and elector who had promised to violate the pledge because the court in that case said it would have been a fraud on the people of nebraska. You attach yourself to the arguments of general purcell. I do want you to i understood his comments on the phone on the scope of the federal concept or argument. Could you give me what your take is on that . Our view is that doctrine doesnt really fit here. Under the constitution, its the role of the states as stewards overseeing the president ial election process. The typical federal function case, you are worried about a state interfering with a federal official. Here as this court has made clear multiple times, electors are not federal officials. They are appointed by and transmit the vote of the states. Thank you, general. Justice ginsburg. Can you give us an idea of the practical consequences of ruling one way or another . How would a ruling against you actually alter our democratic processes . Most states already require elector pledges. And faithless voting throughout the years has always been rare. So how much difference does it make . Your honor, the chaos that could result from upholding the 10th circuits ruling is one that could occasion a constitutional crisis. As was noted by my colleague from washington, if states have no ability to remove bribed electors and all thats left is congresss ability to choose to count or not count the mere fact of bribing electors in an open enough way would knock out electors, would limit who could vote and ultimately could sway the outcome of president ial election. Its the role of the states to oversee confidence in our election systems, to ensure the publics voice is heard. And all of those values, the integrity of our elections are at stake in this case. Returning to the standing question. Baca was removed from his post. Isnt that a sigma at least . Why isnt it it may not have economic consequences, but isnt it a blot on his reputation . Wouldnt that constitute a cognizable injury . Your honor, the auditor in smith believed he suffered a stigma, and that concern of his statement was not sufficient to give him standing. I would submit the same rule holds here. Thank you. Justice breyer. This is a lawsuit brought against the state under section 93. The courts opinions i take it have made clear that estate isnt a person under 1983. Everybody has waived that argument. Both sides would like us to rule. But can they . If someone sues a foreign country under 1983 and a foreign country cant be a defendant under 1983, can the party simply get an opinion from this court by waving the question . I would start with Justice Ginsburgs opinion in the northwest airline case where she made plain that whether or not there is a claim for relief in a statute is not a jurisdictional question. What we are dealing with here both under 1983 and 11th amendment immunity is Strategic Decisions made by our state in the course of litigation. We made those decisions because we wanted to medic gate litigate the case on the merits. Thats how weve chosen to proceed. Yes, but that isnt my question. My question is of course you want a decision from this court. But mr. Smith might want to decision about how the constitution applies to somebody in mexico or to somebody in russia. Can the parties get that advisory decision by simply saying, we waive all the jurisdictional problems. All the nonjurisdictional problems. All the problems that say this statute doesnt apply. Justice breyer, this court will opt for whatever ground it chooses with respect to whether the court has to rule on this issue, the answer is no. This is not a jurisdictional question. For us this was one of several strategic questions on what grounds to litigate. The other question is i take it that its only in 1960 that the first state passed a statute that actually removed or punished a person for voting the runway. So where their cases of bribery that went unpunished before 1960 . Was there a single case . If so, how many . And what happened . Where their votes counted although they were bribed . The first statute was in the late 19 teens in oregon. I thought there were statutes that required a pledge that didnt punish people for how they voted. But regardless, same point. We dont have a history of what types of changes were made. We know they happened all the time. As professor hardaway notes, in michigan there were electors who just didnt show up who were replaced on the day that the Electoral College had to meet. We havent had electors who were upset about having been replaced or not counted. That isnt my question. My question has to do with bribery. And before the first statute was passed more than 200 years after the constitution was first created, where their instances of and elector being bribed and if so how was it handled . We dont know of any such instances, your honor. In past elections, where their concerted campaigns to influence electors after the popular vote was cast for the purpose of either reversing the results that was produced in the Electoral College by the popular vote or throwing the case into congress . The most famous such case would have been in 1876 involving the tilden hayes disputed election. My other question is essentially the same one that concerns me with respect to the positions of all the counsel in these cases and that is limitation if any on the arguments being made. Is it your position that estate has planar power to remove and elector . If not, under what circumstances can and elector not be removed . From mcpherson, we see induce Plenary Authority over the removal power of electors and the constraint on that is other independent constitutional conditions. Suppose the legislature is in the hands of a Political Party other than the party of the candidate who wins the popular vote in the state. Can the legislature remove all of the electors who were pledged to vote for that candidate and replace them with other electors . This is an important point. Let me answer your question and then get to a slightly different one. If the legislature announces the procedure in advance and gives people the right to vote at my exercise that right, the legislature cannot undo the publics right to vote without violating the right to vote line of cases. However, if the legislature acted earlier, say the prior spring to change the process to give itself the power to appoint electors, not the power in the hands of the people, thats a choice state legislatures could make. In mcpherson it was litigated whether or not a legislature could move from a winner take all to a districting system. There was a partisan motivation for that change and the court said the legislatures power was plenary. If we agree with you that the legislature has plenary power to remove electors, then once the people of your state understand when they cast their vote for president that the legislature has the power to remove the electors pledged to the candidate they favor and replace those electors with other electors . What we are asking for, what we believe the right to vote cases require is that the public told what they are voting on. For the chief justices earlier question, if the public is told you are merely casting an advisory vote as opposed to a binding one that you can expect will be followed, thats a different case. What is the best right to vote case that stands for that principle . In grey versus sanders it says the public has a right for their ballots to be counted. Thank you counsel. Justice kagan. First on your 10th amendment point, why doesnt thornton foreclose that argument . I would think that the power that we are talking about here is not such a power but instead was created by the constitution in the first instance. How can the constitution support you with warrenton . I would suggest a similar principle to what Justice Kavanaugh articulated earlier. Justice kavanaugh noted the cast principle means that if you have a closed case you avoid creating chaos. We would say you avoid intruding on federalism concerns. I thought that was only as to the powers that the states held prior to the ratification of the constitution. Your honor, as a strict matter, that is what the 10th amendment does. There is also the interpretive principle picked up in gregory versus ashcroft that says when looking at intrusions on state power given to the feds, you do so lightly. Mr. Lessig ended his argument by giving the number of hypotheticals. He said if the state can do what youre doing, a state can also enforce pledges to vote only for candidates who have visited the state or release their tax returns or who take a position on certain issues. Is that right . Not necessarily. The tax returns issue has been litigated under the qualifications clause in california, and the court said that could constitute adding a qualification to be president. Theres also an independent question about whether or not you could have a state saying we wont allow someone to be on our ballot in the state at all if they havent done x y and z. It was access to the ballot context that the issue arose. Couldnt you be said to be imposing a qualification too . That the candidates actually received more votes than anyone in your state . I wouldnt interpret that as a qualification to be president , particularly because the right of the states to have a system where the people could be heard is part of the original constitutional design and confirmed in the 12th amendment itself. Its obviously a pretty normal understanding of what elections do. If you assume that these electors were meant to use their own discretion, then the popular vote was not required and it would be imposing a qualification. If you assume electors have this discretion, you have assumed the answer to this case. We would say they dont have that discretion at all. But you are assuming the answer in the exact same way, arent you . What is or is not a qualification sort of depends on this case. So i dont think you can get rid of mr. Lessig so easily as you would like to. Your honor, our position is that the constitution is silent on whether or not you can have electors representing how the public votes. That is inherent in this design and thus we say what is inherent in design couldnt be an additional qualification. Thank you counsel. I would like to continue the same line of questioning. It states under a plenary power to remove electors. What would prevent them from passing a law to say that all electors have to vote for president ial candidates who support certain positions or who have done certain things or who have visited the state . I understand your ex post argument, that states cant change the rules of the election after the election. And have to provide voters notice. But if they did it in advance, what would prevent them from doing so in your view . Im trying to square how this fits with popular vote system. Because if you give people the power to vote and i exercise the power, then our argument is you count their votes. What i believe you would be getting at would be a preclearance process where you have to prewhat electors could be on the ballot before people could vote on them. Let me just interrupt you. Im sorry counsel. Youve indicated it would be fine for people to have an advisory vote to 12 wise people who would then make the final decision. Why couldnt you also have a system in which the people provide advice within certain parameters set by the legislature . I think thats the same context i had in mind. You would basically give people an advisory vote and then after the fact you would have to ask. They have been alerted prior to the fact. In advance, they have been notified that they are free to provide advice to 12 electors and their advice is going to be bounded and there are certain things that the electors have to because the legislature says abide by or else they will be removed. And those are again, as a president ial candidate visited the state, has he taken this or that position. Has he or she turned over her tax returns. Whatever the conditions may be, its a bounded choice. You have argued that choice can be bounded. What prohibits the state from doing that . The state can add limitations as long as they comply with other constitutional provisions. And do those . The requirement to visit the state. The tax return issue raises a qualifications clause question that could be a concern. The president ial candidate is on the ballot. Its who the electors can vote for. Is that a qualifications problem in the states for you . It would be because if you tell electors they can only vote for pick whatever the concern would be, tax returns, people over 50. The concern is you could be adding a new qualification to be president and thereby disqualify and affect someone that the constitution would qualify to be president. You said visiting the state is permissible. That condition would be permissible in your view. I dont see any other constitutional constraint that would address that issue. Our position is the power is plenary or exclusive. The state can oversee electors and remove them who dont follow requirements the state aims appropriate. And q counsel. Justice kavanaugh. Thank you counsel. Justice kavanaugh. What is the purpose of having electors . Thank you. When electors are set up in the constitutional design, that allows for states to make a choice. Electors can either vote as proxy voters on behalf of the public or they can be free agents. By having the structure uniform across the several states, you give states the ability to choose each model they want. Wouldnt if that were the design, why not just leave it to the states as opposed to going through all these details about how electors are supposed to operate . You know Justice Jackson in re said no one can deny that the plan originally contemplated was that electors would be free agents to exercise an independent and nonpartisan judgment as to the people best qualified for the nations highest offices. Thats the quote from Justice Jackson. That implies not a choice but a requirement that the states give this kind of independence free agent status to electors. And why go throughout the details if its the way im asking more broadly if text has all these details to set up a design that is closer to what Justice Jackson articulates. Where in the text do you hang your hat . Your honor, our textual hook is the delegation of authority to the states. James madison said the Electoral College was all about giving the states authority to oversee president ial elections as they saw fit. As the majority in re noted, contemporaries of the founders did indeed see electors as proxy voters on behalf of the public and that was absolutely the backdrop to the 12th amendment. So i would also point you to the 12th amendment as effectively confirming and accepting the fact that electors can be and most often are proxy voters, not free agents. Why do you think the founders did not leave it up to the states to decide whether they wanted their members of congress to be electors . Your honor, the constitution had a series of compromises between separating powers, between the states and federal government and between the states. This was one of those compromises that was reached at the final days of the constitutional convention. Thank you. You have a minute to wrap up if you would like. Yes, mr. Chief justice. As weve noted, this case is all about state authority and on the theory of my friends on the others, states have no Authority Even to remove bribed electors short of a full criminal trial. Our founders gave the states this authority, expected them to exercise it in ways that were sound. Thats what has been the history of our president ial elections. We would urge the 10th Circuit Decision to be reversed. Thank you counsel. Mr. Chief justice and may it please the court. This case is about a tradeoff between flexibility and rigidity. States rule is too rigid and that rigidity could come at a steep cost. The states binding law has no exception. If a candidate dies between the popular vote and the vote of the electorate, there is no exception. If a candidate has a stroke, there is no exception. If there is widely recognized fraud or bribery by the candidate, no exception. If there will be tied to electoral vote and potentially deadlocked house, no exception. The law is rigid. Electors vote for the winner of the popular vote in the state, there is no winners. Or. E is no thats the only option. That rigidity has no place in our constitutional universe. If something goes awry, the framers thought electors could vote with discretion and the 12th amendment didnt change that. More recently the 20th amendment , framers when they analyzed these contingencies recognized even 150 years after the framing that electors still had discretion and could and should use it in the case of death of a candidate. This shows that given the Current System of selection by an Electoral College, there must be times when electors and only those electors are best placed to act in the interest of country. The states have a problem with the idea of an Electoral College and they want to write it out. They make no bones about it. Perhaps we would be better off with indirect election because the months long process presents some instability no matter who wins this case. Until we have an article five amendment, the vote of real humans called president ial electors isnt going away. To make sure the system we have works sensibly given the constitution we have now and those human electors vote by ballot, they must be permitted to do so with discretion, your honors. I will begin by asking you the flip side of the question i asked general weiser. Is there anything that mr. Lessig said with which you disagree . No, your honor. We filed an opening brief and i will sign on to what he said in the first hour. You gave a number of examples of situations that have gone awry and there was no way to take account of them. But im not sure your position has any limits either. What are the limits to your position . The limits, your honor, are that electors must be permitted to vote with discretion. There is a choice. There is always the possibility of bribery, always the possibility of corruption, and the framers considered all the possibilities and placed the ultimate selection of president in the hands of electors. I take your answer when i ask for limits to be that they must be allowed to vote in their discretion that you dont have any limits. Your honor, there are no limits in that voting by ballot so long as the ballot is for a person. The 12th amendment says they must vote for a person. Not a giraffe . Of course they have to vote for a person. Congress concluded in 1872 that the greeley vote wasnt a vote for a person because it was a nonliving person. Those are the limits of the discretion. There is great discretion and appointment. The state can absolutely discriminate between all kinds of people and they do on the basis of Political Party. But once the vote begins that , vote by ballot is the electors. So the elector can say, im going to flip a coin and thats how im going to vote. Thats the same discretion that u. S. Senators have, these are elected officials and they have that same discretion. That sounds pretty limitless to me. Lets say that an elector has a contract. The parties insist that electors sign a contract that you will vote for our partys candidate and if you dont there will be liquidated damages of a thousand dollars. An elector is selected and breaks that contract. Votes for the other individual even though that individual didnt win the popular vote. Cannot contractual commitment be can that contractual commitment be enforced by the state . Not legally, and that shouldnt be surprising because that is the same prohibition that applies to congressional electors who cannot sell their votes. Even though as a condition of participating in a primary. And we cite these cases extensively in our briefs. You can force regular voters to take pressures to support a pledges to support a party. You just cant cross that line and enforce them. Thank you counsel. Justice thomas. Counsel, you mentioned that senators are free to vote as members of the house of representatives. There is some degree of accountability for them when they vote a particular way. What is the accountability for an elector who strays from what is expected . There are several forms of accountability. The first is the Selection Process because they are party people and they are selected by the Political Parties. From there after the vote, they , can be kicked out of the Political Party. They can not win elections. They can have negative political consequences. Thats the exact same thing with senators. Senators have accountability, but it comes six years later. If a u. S. Senator promises to support only low taxes and then at every opportunity raises taxes, their only accountability is six years later. Thats the nature of political discretion and thats the discretion electors have here. But theres also accountability within the senate. Theres accountability as far as removal from office. You are saying that with an electorate that those other forms of accountability are not available. They are, your honor. It absolutely party discretion, Party Meetings just like any other percentage of body. To quibble slightly with what you said in terms of removal of u. S. Senator, there is no precedent we have found of a u. S. Senator being removed perhaps even by an appointing governor in the case of a vacancy on the basis of a vote. Certainly some sort of criminal misconduct, sure. But not on the basis of a vote. Thats really the same analogy here. You mentioned with respect to the state that the state could not that after someone dies, their system is so rigid that you cant make changes because of the death of the candidate. But i think that on your side as a chief justice alluded to, you have a similar problem because the elector who had promised to vote for the winning candidate could suddenly say, im going to vote for frodo baggins. I really like frodo baggins. And you are saying under your system, you cant do anything about that. Your honor, i think there is something to be done because that would be the vote for a nonperson. No matter how big a fan many people are of frodo baggins. That said, i do think the important point is that the framers ha the shed out these competing concerns. They understood the stakes and they said among these competing hypotheticals, electors are best placed to make the ultimate selection. That hasnt changed. Thank you. Thank you counsel. Justice ginsburg. I dont understand your point about rigidity. Because, as i understand the states position is the states have a choice. They can say electors have an independent vote or they can say the electors must follow the parties orders. So the states are being given leeway to do it one way or the other way. So why do you say its rigid when it seems to me it could be described as supple . Because states can have it. Why do you say that its rigid so why do you say its rigid when it seems to me it could be described as supple . Because states can have it either way. Justice ginsburg, the states do have great flexibility as you mentioned in choosing the mode and method of appointment. But the laws that theyve written here, the laws that were enforced against my client mike baca were very rigid. They are rigid in the sense that there are no exceptions once past. And that rigidity conflicts with upposition that every single congress that has looked at the issue of president ial selection has assumed exists explicitly in 1933 when the congress drafting the 20 amendment. Thats a key oversight of these laws. Even down to the more modern era when congress was debating the 24th amendment and noted that it eeded the bar poll taxes for elections for president ial electors because they still exist in our system. Thats the rigidity im talking about, justice ginsburg. Baca has low Economic Injury so has no standard to complain. There is standing. We have asked for one dollar in nominal damages. Mr. Baca gave up an additional five dollars of salary. Colorado statute 14305 provides electors with five dollars. So the stakes financially are small. But the stakes constitutionally are large and sufficient to give standing. To. Thank you. Justice breyer. To go back to the technical point, you brought a suit under 1983 against the state. Jason so the only way the court should look at that is u. S. Fitness jurisdictional. I will give the two sides. Any two people, plaintiff and defendant, who would like issue decided by us, simply have to wait enough matters so that it has to come before us. Its not jurisdictional. We interpret that statues differently. They do whatever they have to do. What are we supposed to do that. Your honor, i think this case is one that courts surely, individually brought against the secretary of state three compromise that involve the plaintiffs giving up the right to her Attorney Fees and other combinations. It was somewhat reframed in order to be brought against the department of state. On just point the court to cut out the 53 70. One one of the kept question, i take it waiting to ask about other terms of accountability. For at least 125 years, the work selectors from time to time. And congress usually counted them and sometimes adopt. For example in this case and did not. So is that not the power that the congress has to make certain that that electric, does not cause trouble. Justice breyer. You did not mention it so you dont probably think it is pretty. I think justice breyer, to be clear, is a poor source site. The greenlee bus that were injected. I dont know what you dont consider this significance. I would like you to answer to that. Your honor, just understand, the three that were rejected by congress were actually full. They were electors that work elected. A student doesnt congress power, through the section 15, as the constitution, does that act as a significant check on the and a does it not. It can your honor, the courts and congress have never interpreted the boat to be regularly given. And the congress possibly has the power to reject this under certain circumstances but we know it is never done it though. In this relate both the ones that were rejected, they were deceased and in the 63 votes, they voted for other people who work some since those were all counted. We have to interpret the constitution to mean what it means regardless of the consequences. I am interested in at least an understanding what the consequences of your position would be. We are told by experts on elections that the consequences would be potentially, chaotic and in particular, of the professors reef. And experts on elections that acceptance of your position, would mean that after election where the apparent outcome based on the popular vote is a small margin of victory for one candidate and there would be conservative campaigns to change that result by influencing a few electors that could be achieved by influence and just a few electors. That is just one of the consequences. And just in the fact, in most states the electors are not even listed on the the balance pretty and therefore the voters have no way of trying to ensure that the electors who were chosen are electors who really will honor the wishes of the voters. So they really deny that this is where your argument would lead. We do deny it. Attorney general, in the response to prior question on the same issue noted that there had been campaigns are ready to affect electors. He mentioned 1876, the famous election but in fact robert alexander, eight site on the last page, alexanders research showed there have been concerning campaigns in 2016, and 10000 and beyond. Some 20 percent of electors, have contemplated by switching the boat and then 100 percent have been contacted. Statement is there a greater chance. Didnt sir wesley support this effort in 2016. Student your honor, he has been representing these electors from the beginning in 2016. That was not my question didnt he advocate that some electors change their votes for the purpose of changing the outcome of the 2016 election pretty. Your honor, i believe that he supported the legal discretion selectors had they were here today arguing for. And the reason is this in the constitution, but be, that going back to that chaos, the center has always felt that are held and we know that in 18 states today, have no such laws. The states are not about to say that theres some kind of constitutional requirement that they implement them. In fact, they say the reverse. This is a feature read. Do they have any power to remove electors. He states. I cannot think of any. Our Government Office holder who cannot be removed from office. Statement yes they do have some power to remove electors but not within that interferes with the ballot. What is there a limit to the power to remove. Again, then interference with the cord functions so electric does not show up to vote, the states represented, is our view thats impossible to remove it place electric. That is not true. The becomes a vacancy. The electric contacted spilled and history sake they can and will be field. That electric can they be removed for robbery. Convictions by proof beyond reasonable doubt. When the electors need to vote. Before that time. No, we dont think so your honor. They cannot be removed for the position of bribery. Or a mere whisper of it. They have to be removed for proof of it. A member of congress cannot be removed from office by two thirds vote without a criminal conviction. The Congress Certainly has power to remove must go through a full process. I took your honor to be asking about this instantaneous removal on one official. One single state official. They will make a decision to kick someone out based on rumor. No, that would be inappropriate for any sort of elected official. Thank you castl. Suppose a look at doesnt say anything about the things here. Mostly i just read it the constitution is silent. Which i then do and why. Justice kagan, in that case i think the original understanding was control. And we think there is clearly in order to turn to that with original understanding was control because it is so clear and color and it doesnt even necessarily challenge it but the original expectation. Sorry, do you mean prior to ratification . Pretty quickly, even if you are right, from the first, that there were these pledges and theres never been a substantial amount or number of electors. So i would think that the history both at the time and since, would cut against you. No . Note Justice Kagan because i quibble is not with the pledges. And it is not with the idea of Party Control. The idea is the consorts with of the vote. It is with what a here removing in the letter predict who actually votes. He actually presented a vote. An attempt to vote in places that was rejected. That is novel. It has only happened in 2016. Despite the Party Control of the Selection Process. What if i said if i think the best thing to do is to leave it to the states. To not impose any constitutional requirements on them. Your honor, i would push against it because i dont think here in this case. With that it hypothetical. If i just not think that there is not enough. To provide an answer to the question and there are all the states knowing what colorado is doing. Why not just leave it to them. Because your honor, when Justice Kagan, when you sit there all of the states doing what colorado is doing, it will actually have never been the state what colorado is doing. That was 220 years of unbroken history. I think that speaks very loudly if your honor is concerned about how to interpret that silence. If youre ready to move on, continued to make another point. That was directed to Justice Kagan. Im done okay. Counsel, suppose mr. Baca had asked congress to count his vote. And congress decided to do so. We be here. Yes you and your honor. There is no mechanism for mr. Baca to ask congress to count his vote rated under the electric, the state has pointed to any mechanism other than perhaps making a phone call to a senator. Lets a posse had asked congress and the supposed congress had agreed to count his vote. That is my hypothetical. Would we be here pretty. If congress had counted his vote instead of the replacement, then no then perhaps not because he would not have lost the office. He didnt get a chance to vote for Vice President either. But assuming that he had a valid or about fully cast. Then no, we would probably not be here. He did not seek or try to ask congress to vote. Did he. He did not. There is no mechanism for it in the state has not pointed to one. In the damage he states, is 6. Is that right. It is endless, it is a 1 dollar pretty. So its 1 dollar nominal damages. Why should we exercise our discretion when the nominal damages are 1 dollar pretty he did not Seek Congress to count his vote as you point out. So im unclear whether there is a mechanism to do so. We have a cause of action that does not exist and we are asked to be overlooked because of this stipulation by parties. Why is that sort of a manufactured litigation this court should decline or should bother with when refusing the discussion. Because once there is jurisdiction and again, all emphasized that the question of whether excuse me, but this court has discretion over what to entertain. And it also has some authority to exercise the importance of the adversarial process treated as proper uses. It does and i think the argument today is highly adversarial on understanding the merits in the discussion here is because there was a conflict in the lower courts on an important issue pretty and the unique chance that this court has to decide this issue a president ial election outside of the very contested context of an actively fought president election. So i think youre explaining expression not jurisdiction. It is well exercise here and again colorado does not contested. Thank you. Justice kavanaugh. Thank you chief justice and good afternoon. How if it all, should that Political Parties affect our analysis of this case including the 12 commitment interacts with article two. Justice kavanaugh, the Political Parties should provide the context for nominating electors and the appointment of electors. The fact that there are Political Parties now and were emerging Political Parties in 18 oh three the work of doctor remains in the constitution. And electors are people who vote and all of those words, and all of the structural principles may not todays vote is with discretion. Statement then Justice Kagan, noted that a question about what to do with the text is silent and we talked about various things that could fill the gap there including the states authority. Another of course under our historical practice of case law, under cases like canning and many others that we look to historical practices. What is your strongest point on why the historical practice favors you rather than favoring the other side. Justice kavanaugh, in addition to historical practice that we are already discussing, also point the course to the history of constitutional amendment that have been introduced to truth try to precisely to eliminate the lector discretion than everyone who is introducing the amendment, seemed to exist. Also point out in her brief, this starts in 18 oh one with no less than Thomas Jefferson saying, maybe we should get rid of the office of electors. They can only cause troubles. In a continuous for 20 years such men as renter despite thomas apartment, and essentially every single congress. Those amendments were not meaningful in the people who thought we ought to eliminate the electric discretion were not writing on a slate, writing knowing there was an electric discretion pretty that would be a lot of waste of oxygen if there was already a way to eliminate electric discretion if they do not have it in the first place. Statement take you very much writing. Two minutes for a wrap up if you like. Just to conclude briefly, the court knows intervention here was extraordinary and unprecedented print enough colorado was permitted to undo the home and check the has been deep into the system a president ial selection, there really could be in an outcome. By contrast, most electorates have been free and the selections and here we are today your honor. Indeed, electors became legal discretions 19 states in a decision from this court wont change that. So the question for this court is whether to approve of the state novel intervention. In his novel rated and be left wondering, how the states overly rigid interpretation could go haywire as we discussed other thans sermo keep faith with the constitution until mid to get and direct election. Acknowledging both sides here, had a vision of president ial selection that is imperfect rated of her various checks and nonsense and separations, that our constitution amendments happen into the constitution, all of those should be given a role in our constitutional universe. All of that is left up to the electric discussion. Thank you mr. Chief justice. Two minutes for rebuttal. Let me offer three points in response into closing thoughts predict the payment or nonpayment of the per diem was never before alleged in a reported nonpayment is not an record. Second, nominal images, prior cases of smith and berg, did not a Court Standing on nominal damages alone. Whether there is a national personal injury. Second, just important point about congressional, removal in case of primary, it is worth noting there is a prescribed removal process for senators. When the case of electors, there is no such process. Which means, this course default rule controls. The power to remove is incident to the power to appoint pretty similar source not think that this is the first time weve seen in the lector violated state body law. Up until now, including 2016 election, the Voice Congress differ on count votes that has been transmitted by the states. To closing thoughts predict during the course of this entire litigation, and the argument today, my friends on the upside, failed to offer any viable theory on how to address the spectacle of a bribe electric and electrical events or one who have perpetrated the bait and switch on the people of the state. Colorados, pledge requirement addresses all such terms. After over two or three years of constitutional, my friends on the inside were talked out our nations state senator model of electoral accountability in favor of a treacherous experiment and weird this court to reject this dangerous time on and avoid a potential constitutional crisis by reversing the tenth circuit ju cspan friends, welcome to the final installment of the National Constitution center and sees thems wrapup of the remarkable two weeks we just experienced together. For the first time in american history, the Supreme Court has been broadcasting live oral arguments in the National Constitutional center and cspan has welcome to the americas lean both