Heard, and to Learn Together the cases we have heard. We have developed a nice ritual together of beginning our by reciting the Inspiring Mission of the National Constitution center, which comes from the u. S. Bicentennial, which is when the National Constitution center was founded. Along with me. The National Constitutional center is the only institution in america chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis in order to andease awareness understanding of the constitution among the American People. Time ihe chills every recited. That is what we are doing together, in the spirit of learning. Thanks for engaging us in this experiment. Tom excited to welcome you talk about the remarkable arguments we just heard about whether or not the states of washington and colorado can pass to voteuiring electors for the president ial candidates whom they have been pledged to elect. Joining us to discuss this crucially important and deeply interesting constitutional question are david and paul smith. Behalf ofd a brief on the Independence Institute in support of the electors. He is Research Director of the independent institute and the associate associate policy denversiversity of Stern College of law. Paul smith filed a brief on behalf of the Campaign Legal center and he is Vice President litigation and strategy at the Campaign Legal center and distinguished visitor at Georgetown University law center. Thank you so much for joining. David, we will begin with you. You are representing petitioners and we heard in the argument in wentirst case petitioners first. Tell us, if you will, what provisions of the constitutional on toto the electors rely theyrt the argument that must have the power under the constitution to exercise independent judgment, and that state laws for bidding them from exercising independent judgment violate the constitution . The key things are article to seven section one, which created the original system for how the present should be elected, and then the modifications for that and it12 amendment, changed some of the voting provisions but left some of or all of the relevant positions from the original article to intact, and actually repeated them in similar language. The keywords are electors. Electors are someone who have, as all the dictionaries show and also, the websters dictionary of american english language from 1828, specifically cited when he defines the word elector as someone who can make an election and have a choice, he pointed specifically to the american president ial system and used them as an example. Their keywords, elector, vote, and balance, all of which are at the process they go to, which seems to imply discretion and free choice, and Justice Kagan pointed out, you can have a soviet style election where you go through the formality of voting in a sense, but that is not a real election. The strongest words on the other as mr. Smiths brief pointed out well, are a point, that the states get to appoint electors and have very wide discretion. The question is, the way i would does the word swallow up the other words or are those words like elector themselves a limit on how much control the states have after they have been elected. Jeffrey you called our attention to article two, section one. Each state shall appoint in such number of electors equal to the whole number of representatives, to which the state may be entitled in congress, but no senator or representative or Person Holding office of trust or profit under the United States shall be appointed elector. The second part of article two, section one, clause two, says, it came up in these and several asked why this has been exempted , the response was that was the people they did not want to be choosing a president. The text of the 12 amendment was. Lso much quoted your brief argues that the 12 amendment, which was asked in the wake of the failed election of 1800 and recognized Political Party system for the first time shifted the original understanding of electors as exercising independent judgment and presumed that they would follow their parties all and basically be faithful representatives of the party. Tell us how you think the 12th and howt is relevant would you respond to Justice Kaganss conclusion that the text is not clear in a way . To that was to require electors to cast separate votes so you would not end up with a tie the way they did in the 1800s. I think this is not really disputed, that reflected the emergence by 1804 with a two party system, the idea that electors were going to be for one party or the other, and pledged very frequent to vote for the party, when it was an accepted feature of the system by 1804, the arguments that the state makes is that in theyng that amendment, ratified the meaning of the lord electorate, which said they can be pledged and can be found to support a particular outcome, the outcome of the vote in their state, and that states choosing to do that are exercising the power they had at the beginning. In terms of Justice Kagans point, it is right that the states argument is partly based on the absence of language in the constitution, there is no. 2vision that the electors that says anything about confining the power of the and those have been in place since the 1790s. It is part of our system. Argument, youc know, the meaning of the word vote and elector, and the absence of something more compelling suggests the case is limited in limited in what they can do. Often, rayame up versus lair. It was decided in 1952 and the Supreme Court held that the state of alabama could require its electors to make a support the nominee of the Democratic Party. On the grounds that the history was unfair. It was a dissenting opinion by Justice Jackson which several of the justices mention. He defended the original understanding of the Electoral College. Faith hat no ones ch is implicit in its text said that that has been superseded. And then he quoted Gilbert Sullivan. Fan. A big Gilbert Sullivan Justice Jackson said now electors officially became voluntary party lackeys and official nonentities to whose memory we might justly para five paraphrase, they always voted at their partys call and never thinking for themselves at all. My question for you is that was a dissent that Justice Jackson wrote. Why is the other side correct that basically both historical practice and even supreme cases own president s in a called mcpherson versus blacker, which gave states plenty of authority to set qualifications, why dont they point against your side . Say i agreeike to that the case was characterized in mr. Smiths brief. That was a case where in the alabama primary for people on the ballot running to be the president ial electors at the general election, beyond that ballot. The guy wanted to be on the democratic primary ballot to run in that race to potentially be an elector. The Alabama Democratic Party said if you want to run in the democratic primary, you have to take a pledge that you will support the nominee of the national Democratic Party for president. And this guy did not want to. And it came out just as you said where the Supreme Court said no. The Alabama Democratic Party, if they want to require a pledge, that is their legitimate choice. Smiths brief points out , a great scholar of original is him said the court very carefully did not go over that line and say you can force electors to vote in a particular way after they have actually been chosen by the state. There are certainly statements in there where you can take it as an input patient and try to run with that. The court very carefully did not go that far in the ray case. Is the corinne did not take it to the next step. It remains an open issue for this current court. Many thanks for that for helping us with what ray decided. I was very proud to see both of them with such power on your side of the case. Paul smith, on the other side, was pressing on this point. Professor lessing said it is ok to require a pledge but not to enforce a penalty. Are you persuaded by that distinction and why do you believe that text and history points in the other direction . There is some oddity about saying it is ok for the states Everyone Wants to be an elected pledge. You cant do anything about it if they just ignore it after the fact. That creates all sorts of strangeness about the system. What is the about states power to do anything with the electorates and after the ction day we have a lot of discussion about what happens if the electorate takes a bride before takes a bribe, what if the electorate said i would just not show up and i cast a vote for this person, a series of compromises. They have two that states have at least some power after the election to do things to electors under certain circumstances, which creates a stopping point problem in his argument, i would say. Thanks for that. David, as Justice Kagan put it, this is not strictly an argument youre making about the original understanding of the constitution. That might be before ratification but certainly in the time of the amendment cap things switched and we adopted a new understanding. Are you hanging your hats on the text, saying that the meaning of the word includes the power to reach independent judgment that cannot be constrained or is there something beyond that argument at the core of yours . You start with that argument and our brief was from the if Independence Institute, purely originalist. There are a lot of issues in the case and we want to give the court solid and a comprehensive exploration of the original meaning meeting, then the ratification after, and then discussion follow ratification, but most importantly, when the 12th amendment was ratified, all of the pro and con discussions about changing the system of president ial elections, for two people once, or do they vote one time for president , and then have a separate ballot for Vice President . Con discussion of those systems and congress was all based on the explicit statements that electors do have discretion. So of course they recognized the parties existed but in 1804, those were for or against the new system and agreed the electors would continue to have discretion, and they made their arguments for the new system with that in mind. Thank you for that. Can he respond to the argument a lie paul, can you respond to the argument about the original understanding of the 12th amendment and why you believe the creation of the twoparty system in 1800 actually allowed states to constrain electors . , by the time we got to 1804 the parties existed and were putting up their electors, exacting pledges from them and everyone knew and understood that that is who the people were. They had become its old and flunkies. The argument was, people understood the word elector in a different way, even if they had a different understanding. The lesson of history is that is the conception in place ever since. Some states did not even put the electors name on the ballot because everybody assumes and understands that the electorate are merely placeholders who will cast the votes in favor of what they were pledged to support. Effectively, we do not think of them as exercising discretion. We have not thought of it that way for 200 years. Ultimately, a lesson of history is, not just in 1804, though you can view that history both ways, but with respect to the next two centuries. One thing the court has done is look at how the arrangements have been worked out and how the system has operated, and say reform the wayn we read the constitution. The arguments from the states are that the system is giving us all of the power and that works much better if we can enforce them instead of leaving the country open instead of overturning the election. Thank you so much for that. Ended his argument with a parade of horribles and said if states are able to do so, they might forbid electors from voting or released its tax returns, as proposed. There are opportunities throughout history, and history suggests the elector should be able to exercise discretion. On the other side, Justice Kavanaugh said we generally adopt a principle of chaos avoidance. If we give electors this unfettered discretion, they might be lobbied and bribed and have freeforalls. Tell us more about the horribles described which seem to be realities, and whether you believe or why you believe a decision in your favor would lead to less horrible results than the alternative. Did ahink both sides good job of pointing out if there is a separate parade of horribles potentially true. , one thing the court was addressed in a lot in over in the oral arguments, especially the washington case, was, as the two sides framed it, they came in with an absolutist position on that side, saying once we are appointed, that is it and the state has got no power over us at all. On the other side, the state is coming in and saying no, our up at our power to appoint, you may have gotten appointed in november, and then when youre in december 9, actually, voting by ballot for the person you choose for president , that can be snatched away and will be treated as if you somehow resigned your appointment. I think all of the justices seemed to think that went way too far and one of the questions was, can we just focus on one issue, can the state punish an elector for the particular choice that the elector makes . In terms of the potential good catastrophes on all sides, one thing we have for constitutional guidance is the 20th amendment, which addresses the question, what do you do, and that was from the early 1930s, what happens if after the Electoral College has met, and we have a president chosen by them and maybe even transmitter results to congress, what if the president or Vice President died in the 20th amendment provides a mechanism for how to assess that. When the 20th amendment was being passed, they never addressed the issue of what happens between the general election day in november and when the Electoral College meets in december. What happens of the president or Vice President dies then . They knew they did not have to. The electors would he able to make their choices. When the electors may be run on a ticket, saying they made a Campaign Promise to vote for somebody and now that guy is dead, the electors on the december meetings would address that. Paul, if you could respond to that point, do you think the 20th amendment is explicit on 20th amendment is explicit on the powers to make judgments, and then address one side in the parade of horribles, your side was pressed repeatedly, what could states not do, and the response was, they could not independently violate the constitution. They could not discriminate on the basis of race and choose electors, and maybe they could not require electors to turnover tax returns because that would provide an additional qualification on who could be president in violation of the qualification returns of the constitution. Unpack the response. With the person who wins the election dies before the meeting of the Electoral College, i do not see how that in any case, states are lacking in power to require electors to vote for the person, if he is still alive when the Electoral College speaks. It seems achilles the states it seems like it leaves the states fully in control of figuring out what to do in the unusual event or someone dies. I do not think the answer to the question of whether these pledges can be made enforceable of states choose to do so, one thing they could choose to do is make them enforceable in that person died in the electors will then the electors will figure it out, or a better written state law might have an answer. In terms of parade of horribles, it is like the argument yesterday trying to look for a limit to issue subpoenas. It is all about limits. I thought for the states, they did a pretty good job of saying, there are some things we cannot do with our appointment power, like Racial Discrimination or alter the qualifications of the president , but in general, with pretty unlimited power, in practice, it means we have all chosen to use the popular election to decide which will be elected, and we choose as well to enforce the pledge from those electors as a condition for them voluntarily taking on the role, so it did not strike me that the parade of arpels against the s against the state side was a particularly effective method of arguing from justices. On the other hand, justices, including Justice Kavanaugh and others, seemed to be quite concerned about practical consequences of the Supreme Court itself announced that electors are free agents. The most important practical consequence is you could have one candidate when the popular win the popular and electoral vote by a narrow margin and have two or three electors switch votes and have the entire outcome of the election change, creating a crisis of monumental proportions, a president who actually is lawfully elected that no one would think is legitimate. That is the big fear hanging over the case. It certainly was. One of Justice Alitos big fears, Justice Alito said to the professor, those who disagree with your argument say would lead to chaos in situations where the popular vote is close, it could also be thrown into the alter the outcome and be thrown into the house of representatives. The rational response of the losing party would be to mobilize a mass Political Campaign to influence electorates, and there would be a long campaign. There is a good possibility. He said we do not tonight is a do not deny it is a possibility. There is been one elector in history that seemed to me that criteria. David, maybe you can address Justice Alitos concern about chaos more directly, why wouldnt that happen . I think it could. That was attempted in 2016, where there was a big effort to get enough that electors who are o for trumpither vote or clinton to vote for neither, denied both of them a majority in the Electoral College, send things to the house of representatives, which, under the 12 amendment, chooses, if no one gets the majority, the house chooses the top three. That effort did not succeed and it wouldnt have succeeded even if every elector who had wanted to switch had been not blocked. An electorate in minnesota wanted to switch. The secretary of state prevented his vote from being counted. Of course, that could happen. And honestly, as a prediction, i think that is exactly why i think states will most likely win the case. In my view, the original meaning of the 12 amendment is very strongly on the side of electors being able to elect and make decisions. The practice and expectations have grown up otherwise, and i do not see a majority of the Supreme Court led by chief Justice Roberts being willing to make the large expenditure of Political Capital that it would take to reeducate the American People and say actually, the Electoral College is not just a system of coins. If you are electing choosing people who can make their own discretionary decision. I would love you to add but i would want to note Health Striking it is that david just made an admission that had he heard the argument for, his size his side was going to lose. That is a striking because it did seem clear in that regard than many of the other ones we have been watching over the past two weeks. That leads me to pose a question that glenn asks in the q box. In the q a box. In the case of the ideological, david suggested he did not and he saw bipartisan majority on your side. I do not think it has political salience in the sense of modern republican versus democrats so much. With respect to constitutional methodology, the vote could come down to people who believe in original is him originalism and accept the argument and those were more practical. The subsequent operation of system 200 years may have more to say about it. I think that is what the professor was trying to appeal to, the ritualism of the more conservative wing. He did not seem to get too much traction. I find the court hard to read with the way they do these arguments and everybody doing three questions in two minutes. One thing it means is every justice feels compelled to ask hard questions for both sides. Usually, you read the court as, we are only asking really softball questions. I tend to agree at the end of the day that the court does not want to suggest the contrary names they never heard of. And the kind of campaigning that might go on. But it is not certain, given the format and the difficulty figuring out where the justices are. That is an interesting observation about how the format has made it harder to read the court. The justices asked most questions on that side or more skeptical of. Tough questions of both sides, it is more in that way. Unlike the Supreme Court, we in the Constitution Center, discussions can be guided by First Principles and you can try to persuade our viewers why you should still win even though you may not in the court. Another one of your arguments is the federal functions argument. The greeks argued electors had a federal function which may not be interfered with by the state. The state tried to control how elector shall vote. Tell us what the federal fortune function argument is an d contrasted with the 10th amendment argument that the state reserved powers to command electors as they please. The federal functions argument, the most foundational case for that is mccullough versus maryland, where the federally charged bank of the United States was operating and the state of maryland wanted to propose a tax on certain operations, and the Supreme Court said no, you cannot do that and cannot interfere with that. A lot of back and forth, which gets intricate, are the electors performing a federal function, or, in the extreme view on the other side, colorado says, there really minor state officers under the complete control of the state government. The text of the constitution, at least in the favor of the federal side, once the state appoints electors, the states do not have a further role at least according to the text of the constitution. If you look of the federal statutes that have been implemented for the electoral , from title iii of the u. S. Code, the electors basically brought themselves. They are responsible for Meeting Results toing their congress. Things the colorado secretary of state stepped in. Under statutes, that only happens if the electors, for some reason, dont send in the results by themselves. The 10th amendment states the principal that our federal government is one of numerator powers. Powers are the one specifically given to it. The other powers are reserved to the states. Powers are traditional r traditional powers. The argument we made in the brief is that is completely true. The states never had any power over president ial electors to begin with because president ial electors did not exist. They were created purely by the u. S. Constitution. So states have no reserve or implicit power over those electors for which they can point to the 10th amendment as a source. That is a helpful explanation. As you said, very clearly, the h of mimic reserves power amendment reserves power. It just did not exist before the constitution was ratified. The 10th amendment does not cover it. Wenie asks why would exercise our right to vote if we knew our vote was merely advisory and electors held the real power . Wouldnt that disenfranchise voters . The answer to some degree was stateswer by was that can reserve the power on their own and claim in advance that the popular vote is merely an advisory. Once they say they will abide by the results of the popular vote, then the right to vote as recognized in cases like gray versus sanders kicks in and requires them to respect the results of the popular vote. Tell us more about that argument and the gray versus sanders case. We had questions about whether or not it would be constitutional for the legislator of the state say we will pick the electors and the elections will not have anything to do with who they are. We will run a vote on november 3 that will and will indicate to those electors what the views of the people are of the state on who should be president. Are in charge. It is a purely advisory vote. In theory, that would be possible. The constitution does not say you have to have a president ial election. Legislature can decide we will pick the electorates. What that has to do with the case is a little unclear to me. What we have here is a system we have the democratic electors over here and republican electors over here and the libertarian electors over here and the people are going to go and whichever one carries the stay, those electors will be pledged in advance for that candidate. Context isin that meaningful. The parties presumably pick people who are likely to be faithful and not faith less. It doesnt make the vote, still ultimately not controlling. The electors can ignore the outcome despite the people having told you are in charge. For the lessigem position. The other problem he got into was he had to concede, ultimately the states do have the power of appointment does include some power of removal. Line, and heh that ultimately did in the argument several times by saying if somebody was convicted before the Electoral College meets or somebody perjured themselves once you reach that line it is hard to say that they can cast an illegal vote. Emove you for casting in the legal vote and illegal vote. That argument ended up making the position of the electors more murky. The concession may have been fatal for them. That is interesting. Discussion about the extent of the removal power. Justice sotomayor was pressing about whether the relationship had to be vertical. In other words, whether the president can remove officers that he appoints. But if it was horizontal, credit exist could it guest . But you mentioned it cut against the other side. You mentioned bush v gore. Heavily on mcpherson lacker. Cker v b it involves a law passed in michigan, which divides the state into Congressional District and gave all the electoral votes to the winner of every district. The Court Essentially held that the state had the power to choose its electors as it pleased. Can you tell us about the andificance of mcpherson wyatt cuts in your favor . And why it cuts in your favor . Maine,ebraska in and one electoral vote to each winter of a particular district and to votes to the statewide winner. Nebraska, into thousand eight, obama won the omaha district. There are some statements about the broadness of the states appointment power. I think that is true based on the text of the constitution. Some are trying to bootstrap the power to appoint into the power to control after appointment. Languagele take some from other Supreme Court cases that say we have the power to appoint. That necessarily includes the power to remove. The justices did not really seem to go for that. The power to appoint federal judges means you do not control their decisions. The power of governors to appoint senators, which they had prior to the 17th amendment, does not include the power to remove. People on the others who favor removal power say that is only because there are express limits. So say the senator has a sixyear term. That tells you he cannot be removed after being appointed. There is that same textual limits in the constitution for the electors themselves. That textual limit is electors. The point is in elector makes a choice. You cannot punish or remove in elector for making a choice. And elector for making a choice. As you said, this case like the trump subpoena case was about limits. We talked about the limits your site confronted about whether a state could require a candidate to visit the state or disclose tax returns. The other side was pressed about limits to and elector two an electors discretion . Electorasked, could and just flip a coin . Antice tom is said, what if elector says i want to vote for Frodo Baggins . Frodo baggins is not a person. So what did you not make about those hypotheticals . Did you discern in them any sympathy for the other side . To some extent, yes. From,lly who they came the idea that they have complete the council noted that some votes were cast ords greeley after he died before Horace Greeley after he died. The vote for Frodo Baggins would have to not be accepted. It would then go to congress. Congress would presumably discount the vote in the state would lose one of its electoral votes. An outcome which is hard to defend. Each state has the right to have ,ts electoral votes allocated cast and counted. The frodom even with isgins one is it ultimately only disqualified at the congressional level. The congress cannot appoint somebody else to cast a different vote at that stage. Only a state can appoint the electors. So they effectively would have one less elector. I just want to set up this question. Someone mentioned the ability of congress to respond. Justice ginsburg and Justice Breyer emphasized the power of congress. Ginsberg said what do you make congress hashat not discounted an anomalous vote once . Congress bribery, refused to vote. A method to prevent catastrophe and why is that not enough of a protection . It is an important protection. Horace greeley, who died between before the landslide electoral votes were there. Take the statutes and fully enforced them and the person still pledged to vote for the candidate who is dead, it relates to the same issue as Frodo Baggins, which is it is perfectly appropriate for a state to say you have to vote who isebody constitutionally eligible to be president. You cannot vote for Frodo Baggins because he is not alive and even if he were he would not be an american citizen. Could you vote for sasha obama . No, you couldnt, because she is not 35. You have to vote for somebody who has the constitutional qualifications to be president. The answer is yes. Congress has never refused to count any votes for people who are actually constitutionally qualified to be president. Thanks for that. Strongest s the which justice was most sympathetic to the other side and why . That is a hard question to answer. There were some hard questions asked by some of the more conservative justices, but i do not think i could identify a single justice who i would say is firmly in the column of the electors. Said in the format things are harder to read with all those questions on both sides. You with the ones that thought might find the originalist argument most appealing seemed concerned about practical consequences and about the unlimited amount of discretion being exercised by these electors and problems that could arise. Then their ways concessions made by lessig that there is some role for the state to play after appointment before the vote. If an elector said, i am not going to show up. I would rather have no boat i ld rather have novo, that no votes, they can see the state can replace that person they concede that the state can replace that person. He came pretty close to conceding that as well. , even though concessions it does not really seem justice youk which thought was most sympathetic to your argument. Just as gorsuch did say about a 1000 fine does not change the way and elector is voting. What about this new law in colorado and washington, where if an elector renders a faithless vote that removes him from office as a matter of law. Is that consistent with the constitution . There are good, in its current firm at in its current format, the judges work hard to pose the most challenging questions to the advocates on both sides. Inis harder to get a read or where theyon might be leaning on where they might be leaning. I really hope they do. I hope this is not one of the has standingobody where we do not have jurisdiction or whatever. This issue should be decided now and not in december, 2020 or 8 when it is in the middle of a contested election where the Supreme Court decision would describe would decide the outcome of the election. It is important to have clarity in advance. Your brief for the Campaign Legal center i think i can disclose the date. You get outke sure before our listeners all the arguments and it. And it appointment and for that reason the court should reaffirm authority. S plenary any other crucial parts of that brief that you want to share . Ofthe other sort contribution we made is to point out that if you are going to authority,ind of free agents authority to these electors, they become the most important and powerful people in the country for a short period of time. At a minimum, you would want to have the kinds of disclosure laws, conflict of interest laws, restrictions, bribery laws, all of those things apply, but in fact none of them do. They gitimate that they could be in the employ of the russian government and it would not violate anything for them to be electors at the same time. If we said, if this is really what we are going to say is true we need some time for congress to address those concerns. It would not totally solve the ifm because the states the states are powerless to support the pledges it is going to be a problem. Youre going to want to have the safeguards that are important this that are important to assure that they carry out their responsibility in the interests of the country and not personal interests. Thank you for that. David, would you like to respond to pauls argument that some kinds of safeguards are necessary as they are on other kinds of high officials . Let me praise your superb brief for the Independence Institute, which was a model of originalist arguments. You argue that the Constitutional Convention knowingly copied existing models where elector discretion was protected. Share any additional historical details that you found that you think are relevant to the case. When i was reading pauls brief i said, oh boy. I think i know who is going to win this case. It is notable that on some of his strongest points, the proelector brief did not even really attempt to address that. He suggested that if we are going to do this, the court should state the effect of its mandate until after the 2020 election to get the federal government to set up the kind of prophylactic antibribery laws that would make a lot of sense. One of the things we tried to add was there some people say the whole idea of electors having discretion was thought up by Alexander Hamilton in federalist 68. That is just as little idiosyncratic notion his idiosyncratic notion. The idea of electors with proposed in the Philadelphia Convention by james wilson, one of the greatest, according to george washington, lawyers in the country at the time. He and the other delegates looked to the scottish model. Wilson was scottish, and immigrant. From scotland were chosen by commissioners who are locally chosen. The commissioners, on their own discretion, had to make their own independent decisions to choose who they think would be the best members of parliament. Closer to home, that a similar how to the Maryland State Senate was elected at the time. The house of representatives was directly by the people, but the state senate was through this system of electors, which expressly called for discretion. This is not something that just came out of a character from a big musical these days. Electoral discretion is a much bigger, broader, and widely accepted concept, whether you liked it or not. Alexander hamilton was reflecting conventional wisdom and not advancing theory in any way. Forgiving due to that forgotten founder james wilson. Anotheraligned in musical, 1776, where he was treated as a committee character, but was in fact a great genius. The Constitution Center did a Great Program on the Electoral Collegeh you only with William Ewald who notes that congress originally wanted popular election of the president and accepted the Electoral College a reluctant compromise. Let me stop there and ask paul smith. Do you believe that james wilson, given his devotion to popular election, popular sovereignty, would have wanted discretion ofhe electors to deviate from the voice of the people . Putt is a little hard to thoughts in the head of a framer who that, but a person believes and popular election of president s, by accepting the Electoral College only as a compromise, you would think would want to safeguard the ability of the states when they choose popular election as their method of appointment to be able to have the Election Results be reflected in the electoral votes cast later. Not only you have taken away popular sovereignty by having Electoral College, but you have empowered the Electoral College to disregard the election rule. It is a double whammy. Thank you very much for that. It is time for closing arguments. A wonderful discussion. Give a few closing thoughts after that as assistant cleat and precisely as you can. Tellch of you could just your our viewers why you believe your view is correct under the constitution. Why do you believe the original constitution, as amended by the statesendment, prohibits from constraining the power of electors to vote their conscience . Whether you call the constitutional original whether you call the constitution original or whatever, they say have they still have the same words in it. Andwords elector, vote, ballot all necessarily imply the ability to make a choice. It is really just a constitutional text. Recognize that popular understanding is certainly deviated from that. While i think it is unlikely that the court will want to spend enough of its Political Capital to reeducate the public back to what the text really does literally say and was the original public meaning, the public in general understood those ordinary and nonspecialized words, that is what the constitution says. What we try to do in our brief Everybody Needs a lawyer. We feel, and a constitutional case, it is fair that the text and original public meaning of the constitution get a defense for what they are. Thank you for that, david. Paul, last word to you. Why do you believe that the text of the constitution as well as its as Supreme Court notedent and practice do prohibit straights from constraining the choice of electors states from constraining the choice of electors . That thecertainly true framers said they anticipated that the electors would be acting with discretion, but they did not put anything in the constitution that made that explicit. They gave the states a great deal of authority to decide in that manner the appointment of electors and set it up so the electors are testing the state votes. Given that, it is natural to assume that they would have some ability to make the electors follow the rules. That said, the other piece of it is we know we have gone two centuries or more with the understanding that the electors know, in fact, those rules reflect their state. There have been a very small number of faithless electors in the history of the country. Never really done anything to threaten the outcome of an election. States are not even telling the voters who they are voting for with these electors names. Given the risk of a catastrophic election meltdown if the electors deferred to change the election, i think the better part of valor here is for the court to say we are not going to we are going to leave the system it in place as it is. Marvelously for illuminating this fascinating case. Viewers, you can read their briefs as part of your homework for understanding this case before the appending comes down before the opinion comes down. When it does, i want you to read it. If theres a dissent or concurrence, read that too and make up your own minds about which argument you find most compelling. Thisave joined in enterprise of constitutional selfeducation, listening closely to the arguments on both sides, reading and growing in wisdom. I am so grateful to you, friends, learners, for having embarked with us on this great educational experiment. We did not know whether americans would be eager to join us in taking more time in engaging with these cases on constitutional terms. I am blown away by the rigor of your emails, your questions, the precision with which you are engaging these hard questions and which with all of us are watching the court do its itsrtant work do important work. It is important that you continue to grow in wisdom. The Constitution Center standby to help you. We offer weekly live classes every wednesday, thursday, and friday at 1 00 p. M. , which you can turn into. We have our weekly podcast where i convene experts to discuss the constitutional issue of the week. We have townhall programs that discuss these questions live. It is just a cornucopia of opportunities to spread light and cultivate our faculties and reason. I have to end with this plea. You see this Majestic Building behind me on the fake backdrop. It is closed right now as so many Public Institutions are. We have no admissions revenue for the period of closure and we are waiting for the time when we can reopen. We are a prophet nonprofit despite our charter from congress we are a private nonprofit despite our charter from congress. We receive little to no government money. Website,u to go to the constitutioncenter dot org, and sign up and become a member. Can donate a dollar or more if you can. The crucial thing is to signal your membership in this community of lifelong learners, which really is open to all americans of all backgrounds and perspectives so that we can join together and unite around this great document of human freedom, which unites us, which is the constitution. Let me say my colleagues lana team, cspan, terry murphy, susan swain for having engaged with us in this experiment, which as i have said repeatedly just as holmes said the constitution is an experiment and this experiment has vindicated the founders hope that the American People are able and ready and willing to converge around challenging constitutional arguments and debate them, setting aside our passion, guided always by the cool light of reason. It has been an honor to be part of this constitution part of this conversation with you. I look forward to seeing you very soon. Once again, a big thank you to paul smith and david koppel. Stay safe an , guidelinesl hill remain in place as Congress Begins the week. On monday, the Senate Resumes consideration of judicial and executive nominees. They are back at 3 00 p. M. Eastern and will take it scott brashote on to be u. S. District judge for arizona. The rest of the week they have more nominees to debate including a republican lawyer to be a commissioner on the federal election commission. For now, the senate has no plans to take up the 3 trillion Coronavirus Relief package passed by the house on ryan day. The house of representatives plans no votes in the coming weeks but a performance session is scheduled on tuesday when newly elected republican members will be sworn in. Starting with reauthorization of fisa, which has already passed the senate. Watch live coverage of the house on cspan and the senate on cspan two. Transport poses new dangers of complete universal contagion. The struggle against epidemics is global. The danger of death is worldwide. Tvtoday on American History the 1948 film the internal fight. Over the disease infected zone the traveler became unwittingly a carrier of deadly germs. Wherever he went to the germs stayed. 6 00 p. M. John hancock created the Continental Congress as a committee as a whole. Do we really want and then he appointed another committee of five men to draft a declaration of american independency. And a conversation with congress and the interpreter bill barker. I served 30 years in Public Service had given me a position to my great delight it would be upon a small spot of ground and near a good market for the produce. Gardening is one of my greatest delights. Americaneekend on history tv on cspan three. At 9 00 p. M. Eastern tv ameritrade Td Ameritrade founder talks about his book. Book tv onwards on cspan two. Then another briefing on coronavirus response, Arkansas Governor Asa Hutchinson talks about the need for continuing mitigation measures as the state reopens. According to the Arkansas Department of health website, as of friday, there were more than already or hundred can cases of coronavirus in the state
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