Both michael and robert are in the courtroom today. Polly wishes she could be, too. What this Court Previously deemed unlikely in light of the text of the 12 amendment, which is that illegal removal of an elector after a vote begins, is exactly what happened here only three days after this court issued its prior opinion. This court has the opportunity at long last to hold that the saysitution means what it and says what it means. Constitutional electors perform a federal function, a constitutional function. When they cast their vote for president and Vice President and that is not subject to control or interference by the state. They are controlled, how they are selected . Isnt that opportunity given to the states . Mr. Harrow the opportunity to appoint electors is, but that is where it ends. If they appoint them, why cant they impose conditions on the appointment . Mr. Harrow they can. One of those could be that you have to follow. Mr. Harrow what they cant do is come after that voting begins, they cant intervene. The constitution specifies four things the electors can do and must do themselves. Vote, make lists, sign and certify, and send to the president of the senate. Onyou are placing a lot silence. Because it doesnt Say Something , doesnt mean you cant do it. Constitutionhe commits electors to a constitutional function. Ray is made very clear in v. Blair, in burrows. Chooser,elector means president ial elector means chooser. It doesnt say in the constitution that legislative electors cannot be controlled and their. In their vote. States cannot control the votes of individual electors. That would be anathema to democracy. Ugh, aoes back to yarboro late 19thcentury case talking about the federal court has the opportunity to protect voters. The right to vote for a member of congress is an office created by the constitution, so that cant be interfered with it is implicit in the constitutional design. The function is the same, the federal function is the same. There is no reason that the interpretation would diverge. It is the Supreme Court that is making the link. Perhaps if the constitution says what you say, and electors have these rights, we what do we do with the fact that historically electors havebeen doing what they been told to do . Usually. There are exceptions. Mr. Harrow for most of american history, most of those electors that followed their pledges, there was no legal requirement to do so. For colorado, for most of its history, the electors at a public expectation. If this court thinks that we are entering an era where the public expectation is no longer enough to get 99. 5 accuracy, which is the history of this question, that there are additional steps the court can take pursuant to its appointment power. The state could put up a website, say that these electors, in order to be appointed, must go on tv and a promise. What they cant do is discard the vote once they begin. If i may make an analogy. Jurors occupy a similar role to voters. Jurors are instructed about the toldd to father will to follow the law. Then they are in panel, they deliberate, and the state can no longer interfere. Jurors, youe certainly dont want them taking a pledge of how they will vote before they are impaneled. Mr. Harrow . They can take pledges that they will follow the law, that they are not against the death penalty, that they will listen to the judge. The Supreme Court, there is an 1895 case which is the last time they addressed jury nullification. T, theaid, if they acqui judge cannot grant a new trial, as much as they have disregarded the law. They have the right because there is no viable way that the state has judge briscoe interesting but i would argue it is apple in just. I dont apples and oranges. I dont think that is a good analogy. Lets talk about electors. Mr. Harrow i am happy to make the analogy with regards to voters. As you said, it would be very difficult to conceive of a court asking a juror to support the prosecution. Legislator to a support the Democratic Party or republican party. That happens in cuba. It is not so much the separation of powers we have here in the united states. Why does this analogy for . Why did analogy fit . In these circumstances, you cant get a pledge from these other folks . Ray says that a pledge would have been a somewhat uation butsit close enough says a pledge would have been appropriate. That is a different situation, right . Mr. Harrow let me be precise because you are right. What i meant is that what the constitution says is that the state or federal government may not enforce any requirement for voting. Actors,l parties, other individuals, they can pledge themselves to vote. Legislative electors can affirmatively announce that they will support certain candidates. States can even encourage them to do so, having Voter Registration any party. Can you require them to pledge . To do so . Mr. Harrow the Supreme Court has never decided that. The difficulty with with enforcing the difficulty would be with enforcing it. Judge briscoe they are free things. Once you make a public pledge, even if you are not going to be referred for prosecution for perjury, there is the assumption you would not want to make your word from a moral standpoint. So, pledges are ubiquitous in this area. Mr. Harrow that is exactly the point. Pledges are ubiquitous. Over half the states require some sort of plague. It has never happened before is that legal enforcement of that pledge. Vote,ally interfering the stopping before those steps and wealth amendment occurs. Michael bacalient,. Removing his vote. They would substitute it and therefore the electors of colorado phone it. They say, electors will vote and electors did vote. Electors first voted during the first round. The state then deemed one of those votes invalid before that vote was transmitted, before the 12th amendment was complied with, and before that core federal function was fulfilled. To nominate and send an additional slate of electors. My friends on the others, from colorado, have never explained how what liam stitt was consistent with what williams with thensistent constitution. Vote, counting of the eventually, was not done here in colorado. It was done by congress. Congress decided to recognize that as a valid vote. Is it the place of the courts to come in in tow congress, you should not have come in and tell telless to come in and congress, you should not have counted that vote . Mr. Harrow because the secretary interfered with the constitutional function, it couldnt come into. The same as a state authority could reject the vote of any elector at the ballot box. A judge would say, that is illegal. Congress can count a vote that it doesnt have. I would like to reserve their remainder of my time for rebuttal unless there are any other questions. Thank you. Solicitor general grant sullivan. Colorado citizens exercised their constitutional right to vote in 2016 with a basic expectation, that colorados president ial electors would follow state law and cast their vote for president. Is that expectation consistent with the constitution . Sullivan it is. Colorado follows the short form president ial ballot so it just shows president ial candidate, and that is consistent with many other states. The short form cant modify or amend the constitution. Our country has a longstanding practice of the people voting for president , not for electors. That is why campaigns focus on president ial candidates, not electors. Where in the constitution is it permitted that the state can control the vote of the elector . Article ii, section 1. The appointment power. Judge briscoe appointment is one thing, deciding how the elector will proceed is another, isnt it . Mr. Sullivan the broadest determination. I point you to title iii, section six. Section six in the u. S. Code says states are to certify to the archivist, the elective appointment. Pursuant of laws of such state providing for ascertainment. Statesat occurs, the appointment process is not complete. It can be revised, electors can be replaced. The state of colorado never certified michael baca. Can they be revised and replaced based on how they voted . Mr. Sullivan yes. Under your statute, yes, but under the constitution . Amendmentan the 12 does not mention, much less abrogate the Broad Authority given to the states. Intended to cabin if the drafters had intended to cabin the statesauthority, they would at least mentioned article ii. 12 amendment, while certainly detailed, is silent on certain issues. It does not say what happens after what happens if elector dies the night before the vote or if they do not show up. It does say what happens if they vote. It spells it out in unusual detail for the constitution of vote happens and a series of steps are triggered. Nothing would suggest that if you dont like the vote, you can replace the elector. Mr. Sullivan it is a very detailed amendment, i agree. The purpose of the 12 amendment was driving at a different problem. The 12thse of amendment was the practice which had resulted in what ray called the intolerable problem of an Electoral College time. Before the Electoral College tie. Before the 12 amendment, there was no way to distinguish between president and Vice President , so we had ties. That is the only problem that it was designed to attack. Amendment, the 12th we had already had votes from electors. In the election right before adoption, there was a folk past that was there was a vote passed contrary to the elector. When the amended the constitution, they didnt take out the word elector, which suggests choice, and they didnt do anything to suggest that the powers power gave them a to actually cast the votes themselves, keep putting people in until they get the vote they want. Mr. Sullivan i will concede that there were differences of opinion amongst the founders about what the purpose was. Mcpherson says protect us from the unwashed masses that vote, from the mob. Mr. Sullivan some founders did all that view. The president was to be elected by the people at large. Founders says the reconciled these differences of opinions by living into the states to decide what the by leaving it to the states with the proper role of electors was. In some states, the role of the elector is slightly different. In colorado, as in 26 other states and the district of columbia, the role of the electors is to fulfill the clerical task of certifying and submitting the vote. A canvassing board does not seek to superimpose their own will. Where we find the states authority to bind the electors vote . It comes from case law. Ray v. Blair says it is acceptable. Saysmanich ray v. Blair there is no way you can enforce the pledge. You can make them take it. Pledge he pledge a is legally enforceable. Mr. Sullivan i agree that ray v. Blair left open the enforcement question. They recognize that requiring a pledge or oath is acceptable. Then they say that enforcing that cannot be done. They are asking this court to recognize a new constitutional right for electors to live. Lie. Is electors to constitutional right found in the 12th amendment. What gives the state the authority to bind the vote . Mr. Sullivan article 2, brought Appointment Authority . Section six. Until the state certifies the electors, the employment process is not complete. We dont know what will happen the day before the election. There has got to be a process to replace electors. That is what section six contemplates. If there was some citizens referendum that electors should not be allowed to vote for a candidate that did not release his tax returns, if colorado thought this was a great idea and our state said electors are not allowed to vote for anyone who did not publicly disclose his or her tax returns, is that fine . Mr. Sullivan i dont think that would be fine. Why isnt that fine . They have complete power to control these electors . Mr. Sullivan ray argues that the employment that the appointment power you cant add qualifications. Arent you adding a qualification that they win the general election . Mr. Sullivan that is a qualification put on the electors. Colorado doesnt have any law that you have to disclosure tax returns or pay democrat or anything like that or be a democrat. You are saying, as an elector, you can vote for anyone who didnt get the majority vote in an election . Mr. Sullivan we need to draw a distinction on electors versus the office of president. The state can put conditions on the elector. They cannot put extra conditions for the office of president. They have to put 30 they have to be 35 and a natural born citizen. Mchugh wast judge talking about the requirement that an elector release tax returns. Judge mchugh no, president. But it is a restriction on how that person can vote. It is a qualification for the elector. Hypothetical, the you cannot or should, however they want to draft, vote for this individual because of a tax return or not tax return filed. Mr. Sullivan obligation on the president ial candidate. Judge mchugh theres only some qualifications that are permitted and others that are not. I dont know where we draw that line. Mr. Sullivan qualifications for candidates for president and conditions put on judge mchugh we are determining who the elector can vote for. A person who has a tax return filed or not . Mr. Sullivan that would be an extra condition on the office of president. It is a conditional devoting of the it is a condition on the voting of the elector. May or may not file a tax return. You are determining how that person will vote, just like you are in the statute at issue. Mr. Sullivan i view them as two separate issues. I think you view it as a situation where the elector would have to vote for a president ial candidate over 40, that is not a condition placed upon the elector, that is an additional requirement placed on the candidate. Mr. Sullivan we cannot violate the conditions in article ii. President ial candidates, the only requirements are to be 35 in a natural born citizen. Iwant to touch briefly know that most of the questions of going to the merits but i dont want the standing issue to get lost. I think the standing issue is important, a threshold jurisdictional question. The political subdivision doctrine bars subordinate state offers from suing their state. Im not convinced that the political subdivision doctrine has anything to do with this. Have adore cases said we are looking at whether have not our cases said we are looking at whether you have an individual versus institutional injury . Mr. Sullivan i think here, the only fair reading of the complaint is they have brought these claims in the role as electors. State,o department of acting through its secretary, threatened and intimidated plaintiffs in their rights as federal electors. You are taking their vote. Kerr would suggest, coleman would suggest, that that is a personal injury. If that is a personal injury, the political subdivision doctrine, it is when you are vindicating an official right. What is at play here, per kerr decision,e is that you are rendering not their right as an elector to recognize responsibility. Mr. Sullivan i dont think there is any personal or individual right to serve as an elector. They are saying actions have diminished the office. They may not have the right to serve as an elector. You have to be selected by the state. The point here is, then what . Can the state control the vote . Mr. Sullivan they absolutely can. These are supported state officers. Yes, but going back to the standing issue, mr. Baca was an elector, he wants to be an elector, you took that personal right away from him. I dont see how, when he is suing in particular, he is not vindicating his personal right. The outcome would be, i am trying to help every other elector, but at bottom he is saying you messed with my right. Mr. Sullivan i disagree that they asserted individual injury. Allen, there were schoolboard members who had an interest in paycheck,g their job, not saying that kicking them off the school board will diminish the office. They said, i want to maintain this job i have. That is not what plaintiff michael baca is saying, that i wasnt given my five dollars or reimbursement for mileage, it is not personally, it is injury to the office of president ial elected. Removed meying, you from my job as president ial elector. Think, if it i were a personal injury, he would be saying, i lost something personal to me rather than the office. And the concept of in the context of constitutional litigation, someone can have a personal interest in their job. Not talking about the property interest, he has a personal interest in being able to carry out his job. Why not . Mr. Sullivan i think there is no ongoing benefit these individuals unlike in allen where their ongoing paychecks. This is a one day job. They arrive at the capital, cast their vote, and collect their five dollars. Thats it. I dont think anyone runs to be an elector to get their five dollars. Mr. Sullivan that is exactly right. There is no individual injury. The importance of the job is the function it serves to the system as a whole. Why have electors . Why dont you run it out of the secretary of states office. Lets get rid of this people. We can say five dollars a head. Mr. Sullivan it is different in different states. In 20 states, they are not bound. The functions in that state are different. In other states and the district of columbia, they said this is a clerical task similar to a canvassing board to transmit and certify the vote to congress. Mr. Sullivan mr. Sullivan thank you. Thank you. Mr. Sullivan thank you. Mr. Harrow two points on reply. I think the states argument ignores the key purpose of the Electoral College, to separate powers and protect the election of the president from ultimate control by the plate by the state. The state believes that the state the electoral lege is designed [inaudible] unwashed masses. They are not protecting the people. The state appoints electors. Mr. Harrow thats right. What mr. Sullivan said is that the state gets to keep appointing electors as long as they do what the state says. I think that is more than a condition. That is ultimate control. Iscosoes to judge br question about what are electors. If the states get to keep replacing electors, that is not an appointment power. That is the state dictating the results. The state is saying, you electors have to do the peoples will. Colorado says the person with the most popular votes will define what the electors will do. It is countermajoritarian to say, we will do something else. Mr. Harrow i understand they are trying to fill the peoples will, but they can only go so far. As you pointed out, that is the point of the 12th amendment. There were anomalous, faithless 1800, and they preserved that freedom for whatever reason. Perhaps some electors thought it would do more to preserve the will of the voters. [inaudible] respect, i with think silence does tell us one thing. Theudge mchugh pointed out, 12th amendment is detailed visavis state officials, and there is no role to control that vote. Electors are used several times in the constitution. If this court were to hold that, to use mr. Sullivans phrase, electors from a clerical task, then i dont see how it is possible to say that the same word, elector could be defined differently when it comes to voters. [inaudible] i think you have acknowledged for aelector voted congressional candidate. Mr. Harrow the Supreme Court rejected a kind of attempt in case where the state of arkansas tried to prevent voters from exercising their franchise for representatives who had served more than three terms. The Supreme Court said, absolutely not. That is the kind of control over the electorate. An elector is a Constitutional Office that cannot be controlled in that way. If thornton is correct, there is no daylight between those kind of electors and the impermissible control and the information will control the impermissible control the state had here over my client. Former National Security advisor john bolton talks about u. S. Policy toward north korea. After that, you and then, the heads of the democratic and Republican National congressional reelection committees preview the 2020 election and key races in the u. S. House. Cspans washington journal, live every day with news and policy issues that impact you. Coming up tuesday morning, we will discuss House Democrats impeachment inquiry of President Trump with george mason professor and martin smith will join us to talk about a documentary on mohammad bin salman, titled the crown prince of saudi arabia. Watch at 7 00 eastern tuesday morning. Join the discussion. A,uncer sunday on q and this is smiths own dance institutions Peter Leopold on the history and managing the u. S. Economy. The Supreme Court eventually ruled a tomato is a vegetable and not a fruit because of a tariff. Sort of an odd story. Any botanist will tell you a fact, is a fruit, but in the 1883 tariff put a tariff on vegetables and not fruits. Of vegetables in new york pointed out that the tomatoes brought in from the caribbean were fruit and he did not have to pay a tariff. The battle went on for quite some time. Eventually, the Supreme Court ruled that tomatoes were actually of vegetable. A vegetable. It is an interesting ruling that had repercussions beyond tomatoes themselves. Announcer sunday night at 8 00 a. In his first public route the center for strategic and International Studies hosted this event. Its about 50 minutes. [applause] much, john. Very i appreciate the kind words of introduction. Center forhank the Strategic International studies, and the host of todays forum for the invitation to speak. I think thi t