Frodo Baggins Appears in the U.S. Supreme Court,

in a hypothetical question posed by Justice Thomas.

|The Volokh Conspiracy |

The hypothetical, asked in the Colorado presidential elector case, was what a state could do if an elector announced that he would throw away his vote by voting for Frodo Baggins.

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  1. One Elector to rule them all, One Elector to find others, One Elector to break them all, and in the Electoral College bind them.

    1. You win the Internet today. Where would you like it delivered?

      1. Contactless Delivery please.

    2. Do you mean

      “One Elector to rule them all. One elector to find them. One Elector to break them all, amd in the Darkness bind them.

      In the Electoral College where the shadow lies.”

      I think the electors have a right to vote as they want (but must vote for someone qualified to be president). But it is funny.

      1. No. Functionally I meant:

        One elector to defect.

        After one elector does they lobby others to do the same.

        A majority electors realize they can control the Electoral College and thus put anyone into the Presidency. This effectively breaks every Elector because there is no motivation to follow whatever vote might bind them to a candidate.

        Once this happens all it takes is the Electoral College to vote to bind the people to its decision. (Leaving open the possibility that perhaps the House could overrule it but that would be messy to say the least).

    3. Well, the progs seem to think the Electoral College was forged in the darkest depths of Mordor.

      1. That is because they only think about “ends justify means.” Trashing the electoral college is all the rage because they think with urban centers more liberal it will give them power. I can guarantee you that if the power changed to whereby the majority of voters were going more Republican they would be all about the electoral college. Liberalism doesn’t care about principles. All they care about is how to get power.

  2. Conceptually under the theory being advanced, which I agree may actually be the original, but never actualized, constitutional structure, the electors can vote for whichever individual meets the few constitutional requirements for the office. Unfortunately not Frodo. The person ultimately selected oesn’t have to have been a candidate. In fact, the real electioneering among interested candidates would begin after the electors are selected. The electors could bargain, horse-trade, and even sell their ballot with impunity. In each election cycle, a great many individuals would be running in each state for the limited slots.

  3. Is Frodo Baggins a natural born citizen?

    1. He’s not a citizen, he hasn’t been born, and I’m not sure how natural he is.

      1. So racist. 😉

      2. Could Samwise Gamgee become a naturalized citizen and, in his old age, be elected to the Senate? Does the 14th Amendment extend to halflings?

        1. What about orcs?

    2. Is there a requirement that the elector be a citizen at all?

      1. Nope. There are no specific qualifications, just four disqualifications. The four classes of disqualified persons are:

        1. Senators.

        2. Representatives.

        3. Persons holding an Office of Trust or Profit under the United States.

        4. Persons, having previously taken an oath (as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State) to support the Constitution of the United States, who shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

    3. To fade into the West, there are stringent immigration criteria. One must either be an Elf by decent, an Isitari (native of the Undying Land), or a Ring Bearer. Gimli was given a special visa but only because of his work on the Fellowship and friendship with Legolas.

  4. Justice Thomas amazes us all in oral arguments!

  5. It would have been great if the Chief had suggested a horse instead of a giraffe, then we could have referenced GoT to complement LotR. But regardless I did LOL at both. Who knew the Chief and Justice T could bring the funny.

    Also, I noticed Prof. Lessig wasn’t referred to as his title, but just Mr. Is that typical when professors argue? I understand not wanting to appear to show undue deference to one side, but I don’t think simply acknowledging someone’s title has any danger of that. Prof. V. or someone else please weigh in.

    Finally, two hypos I don’t believe were covered at argument. Under the electors’ theory, could an elector vote for her/himself and run a campaign within the EC itself to get votes for that elector? Under the states’ theory, if they forego a popular vote mechanism, can they just appoint foreigners, say Russian citizens, and further opt to give them discretion?

    1. For your first hypo, believe an elector could vote for himself only if he is qualified to be president.

      For the second, there’s no requirement for an elector to be a US citizen, so the answer to the first part is yes. For the 2nd, states can always opt to let electors vote however they want. The question before the court is whether electors can still vote however they want whether states like it or not.

  6. From you libertarians point of view Frodo did not do too badly as Mayor. I recall the only thing he did was to “reduce the Shiriffs to the proper number and function” or some such. Then he left office.

    Sounds like a perfect candidate to more than a few people. Are you sure that vote would be wasted?

    1. The power of the Presidency would tempt him but ultimately destroy him.

      1. The power would tempt him, but Golum would show up, bite off another of his fingers and Washington DC would fall into a volcano, thus saving Frodo from the temptation. 🙂

  7. But perhaps there really is somebody named Frodo Baggins? I’d give pretty good odds there is one, though perhaps with Baggins as a middle name.

    The next question is whether the electors need to give an address or other information to identify a unique person. There are multiple people with the same name. I remember back some time when we had Michael Jackson (pop star), a Michael Jackson well known in computer science circles, and a third in a field I can’t remember at the moment.

    Wikipedia lists over 20 Michael Jacksons not to mention a similar number of Mike Jacksons.

    1. I still remember the Saturday Night Live that had Paul Simon the senator and Paul Simon the singer/writer on the same night.

  8. Sauron for President! (Why settle for the lesser evil?)

    1. Morgoth for President, Sauron for Vice President in case Morgoth is too tied up to do the job.

    2. Cthulhu called, he wants his campaign slogan back.

    3. Unless the Second Prophecy of Mandos has come to pass, Morgoth is not available, as he is still chained by Angainor. Sauron is out as well given his inability to take physical form. We might have to settle for the currently leader of the cult of Herumor.

  9. Having listened to some of the oral arguments, I was embarrassed to have held the SCOTUS in such high regard for most of my life.

    One of the lawyers kept commenting how (paraphrased) ‘Once the States gave the power to the people to decide who becomes President, you can’t take that away from them.’

    None of the Justices made the obvious response that States cannot take the right of an Elector to decide who becomes President and hand it off to the People instead, because that’s the essence of the entire case.

    The supposed nine wisest Judges in the country can’t spot (or at least refused to acknowledge) an obvious logical fallacy repeated numerous times.

    Their repeated concerns about Bribery were also laughable. It’s illegal to bribe public officials. The Federal statute makes this clear, and I’m absolutely certain that each and every State has similar anti-bribery laws on the books. They universally cover ‘public officials’ which an Elector (at least under 18 USC 201) certainly qualifies as. So SCOTUS was worried that adhering to the text of the Constitution might encourage people to try and do something which we’ve already decided is illegal and for which we have plenty of methods to catch and punish criminals.

    I expect the court to bend over backwards to avoid the obvious textual interpretation, and it will be another stain on the history of SCOTUS.

    1. Wait for the decision to see how the justices handle it. Oral argument is not for the purpose of expressing every aspect of the law and the justices’ questions don’t necessarily have any relationship to how they will rule.

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