Today the Supreme Court hears two cases that ask: Do the Electoral College's "electors" have a constitutional right to cast their votes for any candidate they want, regardless of who won the popular vote in their state?
If SCOTUS formally permits "faithless electors," it could throw the 2020 election into chaos, giving a few hundred people you've never heard of the power to pick the president. Read @rickhasen: slate.com/news-and-polit…
Larry Lessig is arguing this case on behalf of "faithless electors." His stated goal is to blow up the Electoral College altogether, persuading the American people to adopt a constitutional amendment that would move to a popular vote for president.
So far, both Roberts and Thomas seem skeptical that the Constitution denies states the power to control their own electors. That's a bad sign for Lessig, who is pitching a textualist, originalist argument to the conservative bloc.
I intensely dislike the Electoral College, which makes no sense anymore, but letting "faithless electors" do whatever they want is not the way to abolish it. That's just a recipe for disaster. The 2020 election doesn't need any more chaos injected into it.
Alito raises the practical consequences of Lessig's position: The losing party would "launch a massive campaign" to flip faithless, electors, leading to "a long period of uncertainty" over who actually won the presidency.
Is that really a positive consequence? Alito wonders.
Is that really a positive consequence? Alito wonders.
Sotomayor tells Lessig: You compare electors to jurors, who can't be removed because of their vote. But jurors can be removed for all kinds of reasons—including a violation of their oath. So why can't a state remove electors for violating their pledge to support X candidate?
Re: Alito's questions, just leaving this here.
Kagan: You say your argument is based in "context and history," but states have directed electors to vote for a certain candidate from the beginning.
Shorter Kagan: Isn't your originalist argument BS?
Shorter Kagan: Isn't your originalist argument BS?
Kavanaugh advocates for the "avoid chaos" method of judging. "If it's a close call or a tie-breaker," he says, "we should avoid chaos."
Lessig is going to lose.
Lessig is going to lose.
Kavanaugh to Lessig: You frame this as states vs. electors, but isn't it also voters vs. electors? "Wouldn't your position potentially disenfranchise voters in the state?" Kavanaugh asks.
"Why doesn't the 10th Amendment, the state's preexisting authority, come in?"
"Why doesn't the 10th Amendment, the state's preexisting authority, come in?"
We'll see if the tides turn, but right now I forecast a 9–0 loss for Lessig. None of the justices want chaos, and the conservatives aren't buying Lessig's ersatz originalist argument—which, after all, would *restrict* a state's power to control electors.
Noah Purcell, arguing against faithless electors on behalf of Washington State, raises the possibility that foreign entities might hack electors' computers, find embarrassing material, and blackmail them into voting for a particular candidate to swing the election.
~my setup today~ 
Washington State SG Noah Purcell: Lessig's theory of the Electoral College granting electors a right to be faithless is "just not the original understanding. It's an academic theory that has never been put into practice."
Ginsburg asks a good question: Why has Congress always recognized the votes of faithless electors?
Purcell responds: Because Congress defers to the states' authority to exercise control over their electors.
Ginsburg sounds satisfied with that response.
Purcell responds: Because Congress defers to the states' authority to exercise control over their electors.
Ginsburg sounds satisfied with that response.
My colleague is OVER the Electoral College
Alito asks if state legislatures could simply appoint "five wise electors" and declare that the state popular vote for president is advisory. Unfortunately, the answer may well be yes. slate.com/news-and-polit…
Sotomayor asks about the 10th Amendment, which Washington State did NOT raise. "We don't think we need to rely on it," Purcell says. "States have powers unless they're limited by the federal Constitution," and the Constitution does not protect faithless electors.
Noah Purcell, the Washington State SG, is doing really well. Calm, coherent, eloquent, persuasive but not too excitable. This is his third argument before the U.S. Supreme Court; you can listen to his first two here. oyez.org/advocates/noah…
Gorsuch asks Purcell if there's a constitutional distinction between fining faithless electors (as Washington State previously did) and disqualifying their vote (as it does now). Asks if the latter is consistent with constitutional procedures that govern the Electoral College.
Kavanaugh asks Purcell: "If you're right about the electors not having this kind of discretion ... I wanted to get your take on a provision of Article II, Section I that says no senator or representative ... shall be appointed an elector."
We're getting into the weeds here!!!!!
We're getting into the weeds here!!!!!
Every justice asked Purcell good questions, but I sense they were probing for a limiting principle, not seriously challenging his premise. Nothing altered my prediction that Lessig will lose, although it'll be interesting to see what limiting principles the justices identify.
For better or worse, we now have ANOTHER hour of arguments over faithless electors. Why? Sotomayor has to recuse from the second case because she's friends with a faithless elector–litigant. cnn.com/2020/03/10/pol…
The court originally intended to hear both faithless electors case at once, argued in a single hour. After Sotomayor recused from one case, the court un-consolidated them, so we get two hours of arguments. Sotomayor won't participate this time around.
~The justices are taking a bathroom break in between arguments~
Colorado Attorney General Philip Weiser is up now, arguing against faithless electors.
Roberts wants to know if there are ANY limitations on the power of the state to appoint electors or direct their votes. Again, a sensible hunt for a limiting principle.
Roberts wants to know if there are ANY limitations on the power of the state to appoint electors or direct their votes. Again, a sensible hunt for a limiting principle.
RBG: "Can you give us an idea of the practical consequences of ... a ruling against you?"
Weiser: "The chaos that could result from upholding the 10th Circuit's ruling ... could occasion a constitutional crisis." Says bad actors could bribe electors with impunity.
Weiser: "The chaos that could result from upholding the 10th Circuit's ruling ... could occasion a constitutional crisis." Says bad actors could bribe electors with impunity.
Alito asks: Suppose the legislature is in the hands of a political party whose presidential candidate loses the statewide vote. Could the legislature simply remove electors pledged to the winning candidate and replace them? (Weiser says no.)
Weiser says a state legislature could tell voters before the election that their presidential ballots won't count, then appoint any electors it wants.
But a state legislature could NOT hold a popular vote for president, reject the result, and appoint different electors.
But a state legislature could NOT hold a popular vote for president, reject the result, and appoint different electors.
Gorsuch: What would prohibit a state from passing a law that says all electors have to vote for the presidential candidate who support a specific position?
The answer may be: nothing. So many of these questions really reveal problems with the Electoral College itself
The answer may be: nothing. So many of these questions really reveal problems with the Electoral College itself
BTW @rickhasen is absolutely right here: Both Washington State and Colorado are relying on principles laid out in Bush v. Gore, but won't say its name because ... well, you know.
Jason Harrow is now arguing on behalf of Colorado's faithless electors. He inches right up to saying, yeah, the system we're advocating is insane, but so is the Electoral College, so we need to abolish it via constitutional amendment.
Roberts asks: The elector can decide, I'm going to flip a coin and however it comes out, that's how I'm going to vote?
Harrow: Yes. Legislators have the same right.
Harrow: Yes. Legislators have the same right.
Thomas: Yeah, but when a legislator does something stupid like vote via coin toss, there's accountability. What's the accountability for an elector who goes faithless?
Harrow: They can be kicked out of their political party! That's the nature of political discretion.
Harrow: They can be kicked out of their political party! That's the nature of political discretion.
Thomas: What if an elector says, I really like Frodo Baggins, so I'm going to vote for Frodo Baggins. Can a state stop that?
(Is this the first LOTR reference during SCOTUS arguments?!)
(Is this the first LOTR reference during SCOTUS arguments?!)
My colleague is distracting
Alito: Experts say, under your position, a close Electoral College vote would lead to "concerted campaigns to change that result by influencing a few electors." Also, in most states the electors aren't even listed on the ballot. Are you worried your argument would lead to chaos?
Alito: Didn't Mr. Lessig support an effort to flip electors in 2016? "Didn't he advocate that some electors change their votes for the purpose of changing the outcome of the 2016 election?"
These cases show SCOTUS at its best. Every justice is asking good, tough questions of both sides, considering both the legal and practical consequences of their positions. The court should be happy these arguments were livestreamed.
If you had told me a year ago that Clarence Thomas would not only ask questions during oral arguments, but pose a LOTR hypothetical involving Frodo Baggins, I would have thought you'd lost all touch with reality.
Kagan frames the question this way: "If I think there's silence, the best thing to do is to leave it to the states, to not impose any constitutional requirement on them." Seems right to me.
Arguments are over. I anticipate a lopsided decision AGAINST faithless electors. The court was very wary of giving electors a constitutional right to ignore election results. Its decision may well be unanimous.
Breathe a sigh of relief: The Supreme Court doesn't seem eager to let faithless electors blow up the 2020 election. slate.com/news-and-polit… @Slate
