engages in a rebellion or one who would perpetrate a bait and switch on the people of their state by voting contrary to a binding pledge. by contrast, if a state wishes to treat electors as free agents rather than as proxy voters, it is free to do so. in short, states determine how to select electors and ensure that they meet the relative requirements and perform their duties as assigned. this means under green that states can oversee bribery as an incident as a power to appoint. this must include the power to remove and elector without requiring a full criminal trial. under my friend mr. lessig's position, as a practicality bribed electors would cast ballots and illegal notes. the state prevented mr. baca from casting an illegal ballot. just like it's an illegal ballot if you don't sign it. as this course explained, the purpose of the 12th amendment reflected the reality that the states actors acted as pledge agents. as for justice ginsburg point about the enforcing of a pledge requirement, it's worth noting people rely on such pledges which are taken voluntarily. voting requirements would be of litter value if not enforced. states have continued to enact laws. congress has consistently deferred to the authority and no court other than the 10th circuit allow has invalidated the binding law. i would welcome your questions. >> my question is to ask if there is anything that general purcell set on behalf of the state of washington with which you disagree. >> i would only add a slight wrinkle. he did indeed endorse our 10th amendment argument. what i would say is the 10th amendment is an important interpretive principle because the constitution gave the states authority over the elections. >> would you state for me exactly what you think the limits on the state power to replace electors are? >> your honor, i would echo my colleague from washington. it governs whether or not another constitutional provision is violated. the 14th amendment quite notably means a state could not remove and elector based on race or religion. also the qualifications clause means you can't remove electors for the purpose of adding qualifications for who can be president. >> so if you selected electors, one of the requirements as they had to be relatives of the legislators, that would be all right? >> your honor, here in colorado we picked electors in 1976. the state legislature did it directly as long as that choice doesn't volley light -- violate a constitutional provision. >> what if the rule is the electors are chosen pursuant to slates but anyone who says anything disloyal to the state between the time where selected and the time they cast their vote will be replaced? >> your honor, as my colleague from washington noted, once people are voting to make a choice, people have a right for their ballots to be counted. and here, the ballots of people would be invalidated after the fact. that implicates this courts line of right to vote cases. >> any other limitations on the power of the state? what about the bribery cases or bribery hypotheticals that have discussed? -- have been discussed? >> the ability to remove bribed electors is crucial for the states to have and not only after criminal trial but after there is a basis for this concern. to your point, if a state failed to remove a bribe elector, the state would not have violated a constitutional provision per se, it would have violated its duty as a sound overseer of presidential elections. >> that's even after the electors have been chosen. go ahead. >> the state is indeed authorized to remove electors who have taken a bribe, if that's your question. >> yes. what about your power to appoint argument? it does seem certainly our case is involving the power to appoint if by executive officials or if the president to say if it carries with it the power to remove. but that has always been with respect to inferior officers. and the electors here it seems to me are not inferior in any way to the state legislator. they carry rights as appointees carrying out federal responsibilities as well. so i don't see how those authorities support your position. >> your honor, we disagree. the constitution clearly gives states plenary plow or -- power acting as a steward over the presidential election system. that means if electors were to take a bribe or not to show up, it's on the state to address that point. if you only left this to congress in the final instance, that would mean that all congress could do is remove the elector and have it not be counted. the states can replace and elector and make sure the state has the constitutionally authorized vote in the electoral college. the states play a critical role, and that includes the power to remove. >> thank you, general. justice thomas. >> general, you start your brief questioning standing in this case. i wonder if you think under our precedent, there is standing when a person is removed from an elected office. >> your honor, the past cases involving removal from an elected office like powell involve an official with a salary. what's unique here is there is no salary or other personal injury. what's at issue is the institutional role itself. as this court made clear in smith, an individual doesn't 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't. it was oregon that did so in the late 19 teens. what i want to underscore is that wasn't 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 scope of the federal concept or argument. could you give me what your take is on that? >> our view is that doctrine doesn't really fit here. under the constitution, it's the role of the states as stewards overseeing the presidential 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 state's. >> 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 circuit's 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 that's left is congress's 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 presidential election. it's the role of the states to oversee confidence in our election systems, to ensure the public's 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. isn't that a sigma at least? why isn't it -- it may not have economic consequences, but isn't it a blot on his reputation? wouldn't that constitute a cognizable injury? >> your honor, the auditor in smith believed he suffered a stigma having to implement the statute, 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 isn't 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 can't be a defendant under 1983, can the party simply get an opinion from this court by waving the question? >> i would start with justice ginsburg's 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 litigate the case on the merits. that's how we've chosen to proceed. >> yes, but that isn't 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 doesn't 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 it's 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 didn't punish people for how they voted. but regardless, same point. >> we don't 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 didn't show up who were replaced on the day that the electoral college had to meet. we haven't had electors who were upset about having been replaced or not counted. >> that isn't 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 don't 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 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 public's 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, that's 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 legislature's 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 justice's 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, that's 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 doesn't 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 thornton? >> 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 you're 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. there's also an independent question about whether or not you could have a state saying we won't allow someone to be on our ballot in the state at all if they haven't done x y and z. it was access to the ballot context that the issue arose. >> couldn't you be said to be imposing a qualification too? that the candidates actually received more votes than anyone in your state? >> i wouldn't 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. >> it's 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 don't have that discretion at all. >> but you are assuming the answer in the exact same way, aren't you? what is or is not a qualification sort of depends on this case. so i don't 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 couldn't be an additional qualification. >> thank you, council. justice gorsuch. >> i would like to continue along the same line of questioning and mr. lusstig suggested. if states enjoyed planory power, what would prohibit them from passing a law from prohibiting them saying that all electors have to vote for presidential candidates who support certain positions or who have done certain things or who have visited the state? i understand your ex-post argument that is states can't change the rules of the election after the election. and have to provide voters notice. but you if they did it in advance what would prohibit them from doing so if so in your view? i'm trying to look that with a popular vote system because if you give the people the power to vote and they exercise the power, then they would count the votes. you would be getting a preclearance process where you would have to preclear what could be on the ballot before people could vote for them. >> just to interrupt you, sorry, counsel. you've indicated that they would be fine to have an advisory vote for the 10 wise people to make the decision. why couldn't you have a system where people provide advice where people provide parameters set by the legislature? >> your honor, that's the same context i had in mind where you would give people an advisory vote and then after the fact you would have to ask -- >> no, not after the fact. they've been alerted prior to the fact. in advance, they've been notified they're free to provide advice to 12 electors and their advice is going to be bounded. and there are certain things that they have to because the legislature says abide by or also be removed. and those are again, you know, as the presidential candidate visited the state has he taken this or that position? as he or she turned over the tax returns? whatever the decision is. it's a bounded choice. choice can be bounded. this is just an bounds. what prohibits the state from doing that? >> in this situation, the state can have limb takes as long as they comply with other constitutional provisions. >> and do those -- >> the requirement to visit a state i don't think violates any constitutional provision. the tax return issue we've noted raise as qualification clause question which can cause a real concern. >> the presidential candidate is on the ballot, it's who the electors can vote for. is that a qualifications problem in the state's view? >> yes, 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 there by disqualify somebody to be a president who the constitution would qualify to be a president. >> how about other qualifications? you say visiting the state would be permissible in your view? >> your honor, i don't see off the top of my head other constitutional constraint that would address that issue. our position is the power is planery or exclusive as in the state vs. mcpherson. the state can remove them who don't follow requirements the state deems appropriate. >> thank you. >> thank you, counsel. >> justice kavanaugh. >> thank you, chief justice. good morning, general. what is the purpose of having electors? >> thank you for that question, justice kavanaugh. 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 as we do here in colorado, or they can be free agents. by having this structure uniform across several states, you give states the ability to choose which model they want. >> but wouldn't -- if that were e design, why not just leave it to the states as opposed to going through all these details about how the electors are supposed to operate? as you know justice jackson and ray looking that history said no one faithful to our history can deny that the plan originally contemplated that electors would be free agents to exercise an independent, nonparent judgment as to the people best qualified for the nation's highest offices, that's the end quote from justice jackson. so that implies not a choice, but actually a requirement that e states give this kind of independence free agent status to electors. and why -- why go through all the details if it's the -- if it's the way -- i guess what i'm asking for broadly is the text has all these details to set up a design that seems closer to what justice jackson articulates where in the text you hang your hat. your honor, our text -- textual hook is the authority to the states. by contrast, james madison said the electoral college was all about giving the states authority to oversee presidential elections as they saw fit. contemporaries and the founders did see electors as proxy voters on behalf of the public. and that was absolutely the backdrop to the 12th amendment. so i would point you to the 12th amendment as confirming and accepting the fact that electors can be indeed 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 o be electors? >> your honor, the constitution had a series of compromises between separating powers, between the states and the federal government and between the states. this was one of those compromises that was reached at the final days of the constitutional convex. >> thank you. >> thank you, counsel. >> you have a minute to wrap up if you'd like. >> yes, mr. chief just tirks as we've noted, this case is all about state authority. and on the theory of my friends on the other side, 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. that's what's been the history of our presidential elections we would urge the 10th district's decision to be reversed. >> thank you, counsel. >> mr. harrell. >> mr. chief justice, may it please the court. this case is about a trade-off between flexibility and rigidity. and that could come at a steep cost. the state's finding law has no exception. if a candidate dies between the popular vote and the vote of the electors there is no exception. if the candidate has a stroke, there's no exception. if there's bribe or fraud, no exception. if there will be a tide vote and a potentially deadlocked house, no exception. the law is rigid. electors vote for the winners of the popular vote of the state or -- or, there is no or. thatry jidge di has to place in our constitutional universe. if something goes awry, the framers thought that elect tors could vote with discretion and the 12th amendment didn't change that. more recently, the 20th amendment framers when they analyzed these contingencies recognized is 50 years that elect tors still had -- 150 years electors still had discreation. given the current system of presidential selection by an electoral college, there must be times when electors and only those electors are in the best place to act in the best interest of country. the states have a problem with the idea of the electoral college and they want to write it out. they make no bones about it. and perhaps we would be better without that indirect election because this month's long of presidential selection presents some risk of instability no matter who win this is case. but until we have an article five amendment, the vote of real humans called presidential electors isn't going away. to make sure the system we have works sensibly, given the constitution we have now, when though hue mon electors vote by ballot, they must be permitted to do so with discretion, your honor. >> thank you, counsel. i'll give by asking you the flip side of the question i asked general wiser. is there anything that mr. lusigs said with which you disagree? >> no, your honor. we filed an opening brief. and i'll -- i'll sign on to exactly what he snade the first hour. >> thank you. you gave a number of examples here of situations that have gone awry and there was no way to take account of them. but i'm not sure your position has any limits either. what are the limits to your position? >> the limbs, your honor, is that electors must be permit to vote with discretion. as your honor notes, there's a choice. there's always the possibility of bribery and selection and they placed it in the hands of a group of presidential electors. >> i take your answer that they must be allowed to vote in their discretion that you don't 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. you can imagine -- indeed -- >> so what are they -- not a giraffe? of course, they have to vote for a person. >> your honor, congress concluded in 1872 that the great dealy vote wasn't a person for a person because it was the vote for a nonliving person. i'm sorry that i wasn't clear. that's the situation i meant. those are limit thes of the discretion there. there's great limits of the appointment. on tates can discriminate all kinds of people and they do on the basis of political party. but that vote by party is by the electors. >> so the elector can decide i'm going to flip a coin and however that comes out, that's how i'm going to vote? >> yes, that's the same discretion that senators, representatives have. these too are elected officials and they have the same discretion. >> that sounds pretty limitless to me. let's say that an elector has you will ontract that vote if we win the popular vote, you will vote for our party's candidate. nd if you don't, tpwhale $1,000. damages of even though that individual didn't win the popular vote. can that contractual commitment be enforced by the state? >> not legally, no, your honor. and that shouldn't be surprising that because that's the same prohibition that applies to congressional electors who cannot sell their votes. even though as a condition of participating the primary, you can force regular voters to take pledges and to su port a party. you just can't cross that line and enforce them. >> council, counsel. justice thomas? >> thank you, mr. chief justice. counsel, you mentioned that senators are free vote or members of the house of representatives. but there's some degree of accountability for them. when they vote a plare way. what's the accountability here for an elector who strays from hat is expected? >> >> several forms of accountability, justice thomas. the first is the election process. from there after the vote, they can be kick out of the political party. they cannot win election. they can have negative political consequences. that's the exact same thing with senators. senator doss have that accountability. but that comes six years later. if a u.s. senator justice thomas, promises to support only low taxes and then at every opportunity raises taxes, they're only accountability is six years later. that's the nature of political discretion and that's the discretion the electors have here. >> but there's also accountability in chamber within the senate, there's removalbility as far as from office. ut you're saying that within a elector that those other form of accountability are not available. >> they are, your honor. there is at party discretion, party meetings just like any other representative body. and just to quibble slightly, justice thomas with what you said in terms of removal of a u.s. senator. there's no precedent that we have found of a u.s. senator being removed perhaps even by an pinting governor on the basis of a vote. certainly some sort of criminal misconduct, sure. but not on the basis of a vote. and that's really the same analogy here. >> but let's say -- you know, you mentioned with respect to the state that the state could t -- that after someone dies their system is so rigid that you can't make changes because of the death of the candidate. but i think on your side as the chief justice alluded to, you have a similar problem because the elector who had promised to vote for the winning candidate ould suddenly say, you know, because i really like photo baggins and under your system you can't do anything about that. >> i think there is something to be done because that would be the vote for a nonperson, you know, no matter how big a fan ny people are of photo baggins. that being said, i think the important point is the framers hashed it out in philadelphia in 1787. they understood the stakes and they said among these competing hypotheticals, electors are best place to make the ultimate selection. that hasn't changed, justice thomas. >> thank you, counsel. justice ginsburg? >> i don't understand your point about rigidity because as i understand the state's position s, the states have a choice. they can say they have an independent vote. or they can say the electors must follow the party's orders of the states. the states can do it one way or the other way. that it is say rigid when it seems to me that it could be describe as subtle because states could 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 they've written here, the laws that were enforced against my client mike baca are very rigid. they're rigid in the fact that there are no exceptions once passed. nd that rigidity reflects of supposition. that they assume it exists when the congress drafting the 20th amendment that's a key thing to these laws and even when congress was debating the 24th amendment and noted that it needed to bar poll taxes for elections for presidential electors because they still exist in our system. so that's the rigidity i'm talking about, justice ginsburg. >> there's a standing question hat you are no economic back ground or standing to complain. >> i will say standing. we've asked for $1 in nominal damages. mr. baca gave up an additional $5 of salary where attorney general said there's no salary. it provides electors with $5. 10.'s at 10 app so the stakes financially are small but the stakes constitutional and personally for mr. baca are large. >> thank you. >> justice briar? >> thank you. to go back to the technical oint, you brought a suit under 1983. and against the state. and it's fairly clear in the case law that you can't sue a state under 1938. what are we supposed to do about that? >> your honor, i'll echo what attorney general wiser said, that it's -- and indeed i'll cite you the court's opinion. when the court said that it's the court's job to do that. the only way they should look at it if it's jurisdictional. i'll give you two sites. >> the problem is that any two people plaintiff and defendant who would like an issue decided by us simply is to weigh enough matters so it has to come before us because it's not jurisdictional. they do whatever they have to do. what are we supposed to do about that? >> your honor, i don't think this case implements something like that because this case is one that courts surely could hear. it was initially brought individually against the secretary of state through a compromise that involved the plaintiffs giving up a right to attorney's fees. it would somewhat reframe against the department of state. and as the 10th circuit said that -- >> i'll look at that. one other question, you didn't mention in terms of accountability, would i take it, why didn't you, is that congress doesn't have to count a vote of a faithless selector. for at least 125 years there were faithless electors. sometimes they would count them and sometimes they didn't. with horace green they didn't. so is that not a pow twhear the congress has to make certain that the faith less elector does not cause trouble? >> justice breyer -- >> what's your view about that? you didn't mention it so you don't think it is probably? --the greely votes that were reflects our side. >> i know -- i would like your true appears -- answer to that. >> your honor, the greely vote the three that were rejected i by congress were faithful. >> but i mean, doesn't congress power through u.s.c. section 215, does that act as a significant check on the faithless elector or does it not? >> it can, your honor. the congress hasn't never interpreted for a vote to be regularly given. congress -- i do think possibly has the bower to reject the faith less vote but we know it has never done so. those that were rejected were faithful votes for greely who was deceased and who voted for other people who were faithless. and those were all counted. >> thank you, counsel. justice alito? >> we have to interpret the constitution to mean what it means regardless of the consequences. but i am interested in at least in understanding what the consequence of your position would be. and we are told by experts on elections that the consequences would be potentially chaotic. i'm thinking in particular professor's brief and there's een other weighing in by experts that acceptance of your possession would mean that after an election where the apparent outcome based on the popular vote is a small margin of victory for one candidate. there would be concerted campaigns to change that result by influencing a few electors. and could be achieved by influencing just a few electors. that's just one of the consequences. in most states the electors are not even listed on the ballots. and therefore the vote verse no way of trying to insure that the electors who were chosen are elector who is really will honor the wishes of the voters. so do you really deny that this is where your argument would lead? >> we do deny it, justice alito. and here, attorney general wiser in response to a prior question on the same issue noted there had been campaigned already to fect electors he mentioned 1876, but robert alexander, a scholar who we cite on the last page of the briar -- prior brief n chiafalo, that some 20% of electors have contemplated switching their votes -- >> you deny that there's a greater chance of this happening? didn't mr. wesley support such an effort in 2016? >> your honor, mr. lusic has been representing these electors from the beginning of 2016. >> that wasn't my question. didn't he advocate that some electors change their votes for the purpose of changing the outcome of the 2016 election? >> your honor, i believe that he supported his legal discretion that electors have that are here today argue for it. and b, going back to the chaos point, the center has always held. the center has always held -- we know that -- 18 states today, justice alito have no such laws. and the -- the states are not about to say that there's some constitutional requirement that they implement them. in fact, they say the reverse. they say it's a feature and not a bug. >> i want to ask you one more question if i possibly can. do the states have any power to remove electors? i cannot think of any government office holder who cannot be removed from office? >> your honor, yes they do have some power but not a removal pow twhear interferes with the court function of removing by ballot. >> what is the limit of the power to remove? >> the limit of the power to remove is again, that interference with the court fuppings. so if an elector does not show up to vote the states have represented that it's impossible to remove that elector. that's not true. that becomes a vacancy. history shows that it can and will be filled. >> an elector being removed for bryry. about september conviction by truth beyond a reasonable doubt before the time when the electors meet to vote. >> no, we don't think so, your honor, and that's consistent with the treat of every other elected officials. senators have to be removed for proof of it. en >> a member of congress can not be removed from office by 2/3 vote without a criminal conviction? >> congress certainly has power to remove but it must go through a full process. this it to be sort of instantaneous removal, one official, one single state official is going to make a decision to kick someone out based on rumor. no, that would be appropriate for any sort of unelected official. >> thank you, council. justice kagan? >> mr. harrow, suppose that i read the constitution and i find that it just doesn't say anything about this subject, you know, that there are some hints there and there are some hints going the other way. and mostly i just read it and i say the constitution is silent. whoa what should i then do and why? >> justice kagan, in that case, i think the original understanding would control. again, we think there is clear language in the constitution and i want to return to that. but the original understanding would control because it is so clear and indeed colorado doesn't necessarily chailingt. but the original expectation and meaning of the boards -- >> sorry, do you bleen the original understanding like prior to ratification? >> the -- it cause pretty quickly slipped even if you're right so that from the first, there were these pledges, and there have never been a substantial amount -- a substantial number of faithless electors. so i would think that it would cut against you, no? >> no, because our invocation of history is not with the pledges or party control and is having two major parties in our system. the idea is with enforcement of the vote, the idea is what what occurred here removing an elector who actually votes. mr. baca actually presented a vote and attempted to vote and place it in the ballot box and it was rejected that's novel. that has only happened in 2016 despite the party control of the election process. >> what would you say if i said if there's silence, the best thing to do is to leave it to the states. to not impose any constitutional requirement on them. >> your honor, i would push against because i don't think there are silence -- >> i now, but that's the hypothetical. if i just think that there's not enough in the same way that ray thought it was not enough to provide an answer to the question, and there are all these states doing what colorado is doing, why not just leave it to them? >> because, your honor, when justice kagan when you said all these states are doing what colorado is doing, it has never been the case that a state is doing what colorado is doing. that's 221 years of unbroken history. i think that speaks very loudly if your honor is concerned with how to interpret that silence. and for -- >> go ahead, please. , no, no, your honor if your ready to move on. >> that was directed to justice kagan. >> no, i'm done, thank you. >> justice gorsuch? >> suppose mr. baca had asked congress to count his vote. and congress decided to do so. would we be here? >> yes, you would, your honor. there's no mechanism for mr. baca to ask congress to count his vote. e state has pointed to any recognition. in -- >> let's agree congress had counted has vote. that's my hypothetical. would we be here? >> if congress had counted his vote instead of the vote of the replacement, then, no, perhaps not because he would haven't lost the office. i will say he didn't get a chance to vote for vice president either. so assuming on your honor's hype pet cal that he had his ballots fully cast then no, we probably wouldn't be here. he didn't seek, he didn't try to ask congress for the vote? >> he did not. there's no mechanism. tapped state hasn't pointed to one. >> and the damage he seems e -- and the damage is he seeks $6. >> even ls. it's $1 in nominal damage. >> it's $1 nominal damages. why should we exercise our discretion to hear this case when the nominal damages are $1? he didn't seek congress to count his vote as you point out. so i'm thinking if there's a mechanism to do so. and we have a cause of action that didn't expect that we are asked to overlook because of the stipulation biss the parties? why isn't that a manufactured litigation that this court should decline -- should bother with when using its discretion whether to decide a case? >> justice gorsuch, because once there is jurisdiction and again, i'll emphasize that the question of -- of whether -- >> this court has discretion over what to entertain. and it also has some authority to emphasize the importance of the adversarial process. and it's proper uses. >> it does justice gorsuch. and i think the argument today in the brief showed this is highly adversarial on the merits. and the standing is that there was a conflict on the lower courts on an important issue. and the unique chance this court has to decide this issue of presidential selection outside of the very contested context of an actively fought presidential election. so to the extent your honor is talking about extent and not the selection is exercised here. and again, colorado doesn't contest that. >> thank you. >> justice kavanaugh? >> thank you, chief justice. and good afternoon, mr. harrow. how should the quick growth of political parties effect our analysis of this case including how the 12th amendment interacts with article two? >> justice kavanaugh, the political parties should provide the context for nominating lectors and the appointment of electors. the fact that there are political parties now when it was passed in 1803 doesn't affect that the word "elector" remained in the constitution and that they are people who vote and all of those votes and principles mean that they can vote with discretion. >> then, justice kagan noted a question about what to do if the text is silent. and we talked about various things that could fill the gap there including state's authority. another, of course, under our case law is historical practice others ses like no -- that we looked as historical process as gloss on the text. what is your strongest point on why the historical practice favors you rather than favoring the other side? >> justice kavanaugh in addition to the historical practices that was discussed including in the exchange with justice kagan point the court of the history of constitutional amendments to try to abolish the office assumed hat everyone exist. this starts in 1801 with no less than thomas jefferson saying, may, maybe we should get rid of the office of electors that can only cause trouble. and that continues in the 19th and 20th century for 20 years, such amendments were introduced in every single congress. and those amendments were not meaningful. the people who thought that we ought to eliminate elector discretion we're not writing on a blank slate. they were writing knowing there was wasted discretion. and if they didn't have it in the first place. >> thank you very much. >> counsel, you have a few minutes to wrap up. >> sure, just to conclude briefly. the court knows the intervention here was extraordinary and unprecedented. and if colorado is permitted to undue the human checked that has been baked into the system of presidential selection, there could be a chaotic outcome. most electors have been free in most elections and here we are today, your honor. they retain illegal discretion and a decision from the court won't change that. the question is whether to approve the state's novel intervention. and it is novel and be left wondering how the state's overly rigid interpretation could go haywire. or instead whether the court should keep safe with the constitution and the system and maintain indirect election acknowledging that both sides here both sides have a vision ofer presidential selection that is imperfect. but the various checks, balances that our constitution drafters all of those should be given a role in our constitutional universe. i think that all adds up to elector discretion. . thank you, mr. chief justice. >> general wiser you have two minutes for rebeuh tall. >> let me make three points in response and offer two closing thoughts. on standing the payment or nonpayment of the per diem fee was never before alleged and any reported nonpayment is not in the record. on prior cases like smith and bird did not accord only damages alone instead on whether there was an accidental personal injury. and congressional removal in the case of bribery, it's worth noting there is a prescribed removal process for senators as justice alito noted. in the case of electors, there's no such process, which means this court's default rule controls. the power to remove is the incident to the power to apoint. third, it's worth noting this is the first time we've seen an elector who violate as state binding law. up until now, we've always seen congress defer and count votes and as transmitted by the states. two closing thoughts. during the course of this entire litigation and this argument today, my friends on the other side have failed to offer any viable theory on how to address the spectacle of a bribed elector, an elector who works for photo baggins or someone who would want a bapet and switch. this addresses all such harms. after 230 years of constitutional tradition, my friends woulds to out the state center model of electtorial accountability in favor of a treacherous experiment. we urge this court to reject this dangerous time bomb and avoid a constitutional crisis by reverting the judgment. >> thank you, council. the case is submitted. >> c-span's washington journal every day we're taking your calls live on the air on the news of the day and we'll discuss policy issues that impact you. >> coming up tuesday, morning, mary trammell mourning discusses rising covid-19 cases in the state. hownicole clowers examining relief funds are being spent. watch c-span's "washington journal "live at 7:00 eastern tuesday morning. be sure to join the discussion with your comments. facebook comments, and tweets. >> live tuesday on c-span, f.b.i. director christopher way discusses how his agency is responding china's influence in the united states. that's at 10:30 a.m. on c-span. and this protecting worker's pay. we'll join a subcommittee at noon. a frpped the atlantic council, a ook at comblobal cooperation with dr. debra

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