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