Justice Thomas Asks How to Characterize Presidential Electors

Are they “subordinate state officers”? Do they perform a “federal function”? Do they hold a “Public Trust under the United States”?

|The Volokh Conspiracy |

[Co-authored with Professor Seth Barrett Tillman]

On Wednesday, the Supreme Court heard oral argument in two faithless elector cases. First, Chiafalo v. Washington arose from a criminal prosecution; the state imposed a $1,000 fine against a faithless elector. Second, Colorado Department of State v. Baca arose from a civil suit; the faithless electors sued the state for not counting their votes. (Justice Sotomayor recused from this case.) 

The parties disagree about the status of an elector. During oral arguments, Justice Thomas asked several questions about how to characterize presidential electors. First, he asked Lessig, "When you make your federal function argument, does that depend in part on your view that the elector has discretion?" Lessig replied, "The federal function establishes the discretion, Your Honor." Thomas asked the same question of the Washington Solicitor General: "how you would define the scope of the federal function concept" with respect to presidential electors? Purcell replied, "federal electors are not federal officers." And Thomas asked the same question of the Colorado Attorney General. Weiser replied, "this Court has made clear multiple times, electors are not federal officials. They are appointed by and overseen and transmit the vote of the states."

This issue was discussed at length in the briefs. Baca, the elector contended that he performs a "federal function," and the Supremacy Clause shields that function from state control. 

For nearly a century, this Court has made clear that presidential electors perform a "federal function" when they cast, tally, and transmit to the federal government their votes for President and Vice President. Burroughs, 290 U.S. at 545; see also Ray, 343 U.S. at 224 (noting that "presidential electors exercise a federal function in balloting for President and Vice-President" and comparing the "federal function" of a presidential elector to "the state elector who votes for congress[persons]"); Bush, 531 U.S. at 112 (Rehnquist, C.J., concurring) (same, quoting Burroughs, 290 U.S. at 545). It follows that states cannot control the performance of that federal function either directly or indirectly.

Colorado countered that electors are "subordinate state officers," and cannot challenge state statutes that control their duties. 

Based on this structure, this Court has stated on three separate occasions that presidential electors "are not federal officers or agents." Ray, 343 U.S. at 224; see also Burroughs v. United States, 290 U.S. 534, 545 (1934) ("presidential electors are not officers or agents of the federal government"); Green, 134 U.S. at 379 (presidential electors "are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the states when acting as electors of representatives in congress").

Both parties cite page 224 of Ray v. Blair (1952) to reach the opposite conclusion. Here is the relevant section: 

The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that in turn receives its authority from the federal constitution.

Burroughs v. U.S. (1934) reached a similar conclusion:

While presidential electors are not officers or agents of the federal government (In re Green), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States.

As did Fitzgerald v. Green (1890):

Although the electors are appointed and act under and pursuant to the constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the states when acting as electors of representatives in congress.

We do not think Ray, Burroughs, and Green have definitively resolved the status of electors. The Court has, unequivocally, held that electors are not "federal officers." But it does not necessarily follow they are "subordinate state officers," as Colorado contends. You may ask, is there some third choice?

Baca countered that he is not a "subordinate state officer." Instead, he holds a "position of public trust under the United States." This is a phrase used in only one provision in the Constitution: the Religious Test Clause in Article VI. It provides, "[N]o religious test shall ever be required as a qualification to any office or public Trust under the United States."

Baca argues:

Presidential electors are not "subordinate state officers," Colo. Br. 10, because they are neither subordinate to any executive official nor officers of any state. Presidential electors are "appointed and act under and pursuant to the Constitution of the United States." Fitzgerald v. Green, 134 U.S. 377, 379 (1890). As such, presidential electors have a status equivalent to U.S. Senators or Representatives: individuals who hold positions of "public trust" under the United States but who are not "Officers" under the United States or any single state.1

Footnote 1 cites to, among other sources, an article by Tillman:

The text of the Constitution makes this point clear. The Elector Ineligibility Clause says that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." U.S. Const. art. II, § 1. From this passage, we know that neither Senator nor Representative nor Elector is considered an "Office of Trust or Profit under the United States." Yet in virtue of their exercise of sovereign powers delegated by the Constitution, all must hold a "public trust" under the Constitution and so cannot, for instance, be subjected to religious tests. See U.S. Const. art. VI, § 3 ("[N]o religious test shall ever be required as a qualification to any office or public Trust under the United States."); Vasan Kesavan, The Very Faithless Elector?, 104 W. Va. L. Rev. 123, 133 (2001) ("Electors, like Members of Congress, hold a 'public Trust under the United States.'"); Seth Barrett Tillman, Interpreting Precise Constitutional Text, 61 Clev. St. L. Rev. 285, 346 (2013) (the "public trust language accommodated the presidency, vice presidency, and members of Congress (and, perhaps, federal electors)").

Later, the brief cites Tillman's work in a related context:

First, if Colorado means to suggest that Senators and Representatives hold offices "under the United States," it is wrong, just like it is wrong that electors hold "offices under any State." This Court has held that Senators and Representatives are not "Officers of the United States." See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497–98 (2010). ("The people do not vote for the 'Officers of the United States.'"); United States v. Mouat, 124 U.S. 303, 307 (1888) (an elected official is not, "strictly speaking, an officer of the United States."); see also U.S. Const. art. I, § 6 (providing that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office," which makes it impossible for a Member of Congress to hold any "Office under the United States"); Tillman, supra, at 313 n.48 (noting that "Officers of the United States" and "Officers under the United States" are "related terms of art," and neither extends to Members of Congress).

There was one other reference to the Constitution's office– and officer-language. Justice Kavanaugh read the Elector Incompatibility Clause. It provides, "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." He asked the Washington Solicitor General, "What is the purpose you see of that provision if your theory of the electors is correct?" Purcell replied, the Framers "specifically prohibited members of Congress from serving in that role." Purcell is, in part, correct. The Elector Incompatibility Clause excludes members of Congress from being electors. But it also excludes others; it also excludes any "Person holding an Office of Trust or Profit under the United States." Purcell didn't address these other positions–or the possibility that there are other important categories, such as Article VI "public trusts under the United States."

We are very pleased that Lessig's legal team has favorably cited Tillman's 2013 article. We have developed these themes at some length in the Emoluments Clause litigation. And we are working on a comprehensive article that discusses the different types of offices and officers of the Constitution. We have dedicated an entire section to the status of electors. We explain why electors are best viewed as holders of "public trusts." Here is a preview:

The status of electors who vote in the electoral college poses some [interpretive] difficulties. Several courts have concluded that electors are state officers. We take no position on whether these decisions are correct as a matter of original public meaning. Recently, several legal historians took the position that presidential electors are "holders of an office 'of trust' under the United States," and would thus "be subject to the [Foreign Emoluments] [C]lause." We think this position is incorrect. The Electoral Incompatibility bars those holding an "office . . . under the United States" from serving as electors. If the legal historians were correct, then electors (who hold, ex hypothesi, an "office . . . under the United States") could not serve as electors. Electors may best be viewed as holders of "public trust under the United States."

We will share this paper in due course.

We do not know how the Court will resolve these complicated cases. There are a lot of overlapping issues that cloud any resolution. But the Court should not simply assume that electors are "subordinate state officials." The Constitution offers a textured and intricate approach to different kinds of offices and officers. There is no reason to unnecessarily decide the status of electors–a novel constitutional question–if the Court rules against the electors on other grounds.

NEXT: Today in Supreme Court History: May 15, 2000

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  1. It is not clear to me that the Court needs to decide the question. It could simply decide that terms like “Elector,” “Ballot,” and “Vote” have a consistent meaning and application across the constitution, just as it has done for various other terms, such as “person” and “the people.”

    Congressional electors are also not federal “officers.” Yet it clearly does not follow that they are “subordinate state officials,” nor that the state has power to determine how they vote or reject their votes or punish them for voting the wrong way.

    Why should it follow here? Why should presidential electors be any different? The Framers used consistent language. Why didn’t they intend a consistent meaning?

    1. That’s what I was thinking too. One way or another the Federal Constitution surely has to prevent the states from fining individual voters for voting the wrong way in a (Federal) election, and I would imagine the same provision(s) apply to presidential electors too.

    2. It seems “obvious” to me that electors are similar to the captain of a ship in the days of sail. They are sent on a mission with instructions. But they are delegated authority that is necessary for them to carry out their function when cut off from communication.

      Electors are similar. They are chosen to serve the will of the State. They were expected to cast their vote accordingly but it was also recognized that there might be multiple ballots.

      As communications have improved, naval captains aren’t given the same leeway to negotiate trade agreements etc. Neither should electors be given the same autonomy. It doesn’t serve the will of the people.

      1. They are chosen to serve the will of the State.

        Why on earth would you say that? They aren’t even elected or appointed by the state. And to the extent that they are, they’d be like any other politician. And I don’t think we’d let the state of Maine fine Susan Collins for voting the wrong way in the Senate.

        1. They aren’t even elected or appointed by the state.

          The constitution says otherwise: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress” (Art II, sec. 1, cl. 3).

        2. “They aren’t even elected or appointed by the state.”

          Wile most of the early states went to selecting electors by means of an election, the original constitution actually allowed the state legislature to appoint the electors. On it’s plain text the base constitution gives the state legislatures absolute discretion on the method of selecting electors.

          This may have (likely was) changed by the voting rights amendments.

          1. It wasn’t. There is a tight to vote only for officers that are chosen by popular election. No popular election, no right to vote. As Justice Breyer put it in the oral argument, a state legislature could select 12 wise people to decide who should get the state’s vote for president and then hold a non-binding advisory popular ballot to help inform them. Both Washington and Colorado conceded that as long as a state set this procedure up in advance and people knew the impact of their vote, it would be perfectly constitutional.

          2. The 14th Amendment, while not requiring a popular vote for presidential electors, creates a powerful incentive for it “But when the right to vote at any election for the choice of electors for President and Vice President of the United States . . . is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein [antecedent is syntactically unclear, but almost certainly is meant to refer to Congress] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

      2. Such captains would still be subject to fine or court marshal if they were found lacking upon return.

      3. Naval captains, however, had their authority explicitly limited by clear and unambiguous instruction from their bosses. You make a plausible argument that electors’ authority should perhaps be limited. But actually doing so should be accomplished through the amendment process.

  2. Maybe I missed something. Baca bases his claim that as an elector, he holds a “position of public trust under the United States.” , but the constitution says such a person cannot be an elector?

    (“no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”)

    Either I need more coffee, or this makes no sense. But then again we are talking about federal elections, so – – – – – –

    1. One way I see this is that before appointed as an elector he was not a person in “position of public trust under the United States.” It is a pre-requisite.
      It is AS an elector her is a person in “position of public trust under the United States.”

    2. I read it as a person not being able to hold two such offices at once.

    3. The purported distinction is between a position of public trust and an office. Baca claims to be a federal functionary, but not an officer.

  3. IANAL, but I understand there is a general principle that words mean something, and legislation is assumed to be written in specific ways for specific reasons. A noun used in one clause but not another means it applies in the one clause only.

    Why would the Framers go to all the trouble of writing up the Electoral College as they did, just to have Electors act as mere page boys carrying a slip of paper from state to federal capitol? It makes no sense. They are called Electors, not Page Boys, or Vote Transmitters, or Vote Carriers. They must be assumed to have free will in who they vote for and not be bound by what any state legislation or official says.

    It’s a pretty damned silly way to run an election, but it’s been in use for 200 odd years, and doesn’t seem to be unpopular enough to use Article V to change it.

    What I think will raise the fireworks a level is if that compact among several states ever comes into force; the one in which the signees agree to assign all their electoral votes to whomever wins the popular vote. I don’t see how that can have any force over any Electors. I know some states now apportion their Electors, and some have winner takes all. But I don’t see how those can be enforced either. I hope this case tells the states to back off and leave Electors alone.

    1. The compact, when it reaches critical mass of 270 electoral votes will be interesting to watch.
      1) is it a treaty between the states, a thing forbidden by the constitution.
      2) when a state within the compact chooses to opt out, how will the other compact states attempt to enforce.
      3) the compact works to effect a different outcome in analogous elections is in the Bush II and Trump elections by having one or more compact state vote it’s electors opposite of the popular vote of that state. When some Midwest state realizes then that a majority of its citizens just had their chain yanked by a couple coastal states, some interesting fireworks will ensue. The armed citizens currently visiting the Michigan legislative gallery now will seem tame by comparison

      1. Exactly. The first state legislature that overrules its own voters will be short lived.

      2. 1) It’s not a treaty, since there is no exchange between the states.
        2) How? Ain’t no mechanism; there’s for sure a free rider problem. But I don’t know that such is fatal.
        3) We’ll about the cultural import. I’d actually expect it’ll come from the states not in the compact raging at being left out in the cold. It’s rarely the change agents who feel the heartburn from the change.

        1. Except the compact clause specifically states:
          “No State shall… enter into any Agreement or Compact with another State…”
          It may not be a treaty per se but it certainly seems to fall under “Agreement or Compact”.

    2. Everyone agrees that the constitution allows states to let their electors vote as they please. The question is whether they’re also required to do so.

    3. “Why would the Framers go to all the trouble of writing up the Electoral College as they did, just to have Electors act as mere page boys carrying a slip of paper from state to federal capitol? It makes no sense.”

      Makes no sense in 2020, but back in the days of quill pens and dirt roads, it well might have. It isn’t like the state could post it’s results on the state’s web page back then…

      Hence the need for the human messenger, and for others to ensure that the first one gave the correct message. Amongst a half dozen (or more) people, someone in another delegation hopefully would know someone and hence vouch for the legitimacy of the group.

      1. The electors never did travel and never were messengers. They sent in their ballots by mail or courier, and still do.

        1. Travel to Washington, is what I meant.

    4. Colorado and Washington are both NPVIC states. That’s probably why the lawyers (unlike newspaper editorials) didn’t push too hard on the argument that faithless electors are violating the “will of the people”.

  4. This is incorrect: The text of the Constitution makes this point clear. The Elector Ineligibility Clause says that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” U.S. Const. art. II, § 1. From this passage, we know that neither Senator nor Representative nor Elector is considered an “Office of Trust or Profit under the United States.”

    Since it says “shall be appointed an Elector”, a transformation can occur when appointed.

    Scenario: Today I’m not a senator, representative or person holding a office of trust – therefore I can be appointed an elector. I get appointed. Now I hold an office of trust.

    That scenario proves the incorrectness of the stated logic.

    1. I think they writers wanted to specifically exclude the legislations and then added in effect any other person who is an officer of the US

      It does not say that Senators and Congressmen are not “holding an Office of Trust or Profit under the United States” They just wanted to be clear and the “or” is not an exclusive or

  5. Interesting line of thought. It would be difficult to say that the constitution of one sovereignty has the power to create inferior offices of another sovereignty. Perhaps the Federal status changes between pre-appointment (limits on appointment); appointment prior to participating in the College (can’t impede, implied); after being sworn (Federal inferior officer?).

    One justification for the College’s discretion that I haven’t seen anyone mention is the “faithless candidate” scenario. Say a candidate named Harold is elected on the Federalist ticket. After election, his transition appointments make clear that he is either an alien intent on inaugurating the reign of the Cybermen, or intends to rule as an Anti-Federalist. Having a slate of Federalist electors would keep the elected candidate faithful to the political faction that elected him/her/it.

    Mr. D.

    1. The reason why that latter point hasn’t been mentioned is because, with all due respect, it doesn’t make sense. Politicians can switch parties at any time after their election (and have done). There is no reason to worry specifically about the period between when the regular voters vote and when they start their office.

      1. Except that there’s nothing else keeping the candidate honest after the nomination. The electors, as determined by the parties at the time of the nomination, represent the political force behind the candidate. (And might very well switch parties with the candidate.) A month and a half after the election, there would have been enough time for horse-trading in the early formation of the new cabinet to assure the electors that the executive represented the political force that represented his democratic legitimacy, rather than preparing the world for the Cybermen or the Anti-Federalists, solely on the legitimacy of the forms of government.

        Mr. D.

    2. I think a stronger case for discretion would be cases where the candidate to whom they were pledged clearly has no path to victory. It could be because the candidate is dead, but more likely because they came in third. Discretion would allow for their to be the EC equivalent of an instant runoff election.

      1. there, their,when will we get an edit function.

      2. If electors have discretion how do we know, before the vote, who came in third?

        Under this theory there would be a candidate who, say, carried one state. Suppose we agree that the candidate “came in third.” So now, assuming the rest of the EC is close those electors get to choose the President, rather than the House doing so.

        I’m not sure which is worse.

        1. Interesting, this scenario allows conceptual affinities between political parties to resolve elections by plurality. Assuming the founders didn’t contemplate coalition governments, though, the prize has to be putting their man or woman as high in the administration as possible — both of the top two vote-getters will have the incentive to match any offer of the other side, since the EC is now a winner-take-all proposition. It’s not so much the ongoing confidence and support system that you might see in a parliamentary democracy, but a genuine merger of the political interests, since the third-party candidate would serve at the pleasure of the new executive, and could be dismissed without threatening the government. Interesting.

          Mr. D.

  6. I’m still puzzling over how courts (state or federal) can rule on elector-related questions like this without relitigating the electoral vote count already announced by Congress. I believe in January 2017 Congress officially announced the electoral totals – if the courts can make their own, later decision, that would imply that the 2016 election can still be litigated (and we know this is absurd).

    1. Easy. Nothing the Supreme Court says in this case changes the outcome of the 2017 vote. No one is asking the Court to change anything about the 2017 vote. They are just asking for that fine to be overturned and for a statement of law.

      1. I can see overturning the fine, since the fine is based on the court’s own assessment of how the elector should have voted, a matter on which Congress has already ruled.

        Presumably any questions of whether electors cast their votes properly, and whether “faithless” electors were legitimately replaced by new electors by state law, were resolved in the electoral count of January 2017.

        Supping the election came down to the vote of a faithless elector and Congress chooses to count the vote of the elector’s “faithful” replacement, thus determining the outcome of the Presidential election. Could courts, by upholding the claims of the “faithless” elector, thus cast the vote count and the Presidential election into question?

        1. “Supping”=”supposing”

        2. For one the question was the fine, and presumably any other penalty states might like to apply that are more coercive than a 1000 bucks.

          The other elector was immediately stripped of his position as elector, and a substitute elector and vote were replaced. This is the money shot, which is can state actors replace electors until the desired result is achieved.
          And none of these debates have even ventured to look at what happens when the appointee of the electors e state vote, and flips the electoral panel on their own.

          1. I think since the Constitution says “Each State shall appoint, in such Manner as the Legislature thereof may direct.” The state is free to select electors subject to any rules that state may establish and to replace any prospective electors who fail to abide by those rules.

            The slates could be deemed to be nominated by the people in an election subject to some confirmation process by the legislature, the executive or the state judiciary, including an oath on penalty of perjury to carry out their duties in accordance with the law including voting for the candidate who won the election as certified by the state.

    2. Each house judges the returns of its own members. The Constitution also uses the term “Elector” to describe congressional electors.

      A state throws out the votes of all electors who aren’t white, or who don’t vote for the legislature’s preferred candidate.

      No business of the courts, because it’s solely for Congress to decide which votes count?

      1. Clarification: all congressional electors.

      2. Yes, Congress can overrule the state on that one.

        1. “What if Congress is wrong?”

          “What if the Supreme Court is wrong?”

        2. The question isn’t whether Congress can overturn the state. I agree it can. The question is whether the fact that Congress can overturn state decisions bars disenfranchised voters from having any recourse to the courts.

          The long history of voting rights statutes and cases makes a claim that there is no recourse a very uphill proposition.

          1. “The long history of voting rights statutes”

            OK, how would the long history of voting rights statutes enable challenging Congress’s certification of the electoral count?

            1. But the electors here didn’t challenge Congress’ decisions either. The lawsuits are against the states for convicting them of a crime on the one hand and stripping them of their position on the other. There is no lawsuit against Congress here.

  7. > Justice Thomas asked several questions

    Wait. What?

    1. He’s started asking question now that arguments are by video conference.

  8. In short if the electors are bound by the vote then what is the purpose of the Electoral College? In other words this would make that part of the constitution establishes the electoral college and how it is to function not binding!

  9. Once again I’m amazed at legal nitpicking. First, the Constitution says,

    Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

    So why can’t the legislature specify that anyone wishing to be an elector must pledge to vote for a specific candidate, and be subject to penalties if they violate that pledge? I could even see allowing someone to run unpledged – a “trust me” candidate.

    Second, if that won’t work, is it possible the Constitution simply doesn’t answer the question? That it was an oversight? In which case all the debate is, as a friend says, picking flyshit out of pepper.

    Look. The way this works in practice, and pretty much always has, is that the voters expect electors to vote for the candidates they are pledged to, and the electors do that. So why shouldn’t states be allowed to enforce that? Indeed, why shouldn’t it be required?

    1. Federal judges are also appointed. And the senate can also require nominees to answer questions under oath before they will confirm them. The power to appoint judges clearly includes a power to set conditions on appointment.

      Does this imply a power to punish judges who don’t do what they say?

      At her confirmation hearing, under oath, now-Justice Kagan said that the constitution does not contain a right to gay marriage. Can she be prosecuted for perjury because of her subsequent votes inconsistent with what she said?

      1. Some differences:

        1. There is no statutory requirement that judges vote as they promised to do in their hearings.

        2. Nominees do not sign pledges as to how they will vote.

        3. Even if there were such a requirement or pledge, a court case may have complexities not covered by that.

        4. Judges can always claim that their views changed over the years, or that they found the arguments against their previous position compelling. Shouldn’t we want judges who can be persuaded by strong arguments?

        5. Judges are not, or shouldn’t be, agents of those who appoint and confirm them.

        By contrast:

        1. In these cases both WA and CO did have laws in place.

        2. Electors did pledge to vote for a specified candidate.

        3. There are no confounding issues. If you promise to vote for Donald Trump it’s hard to turn around and say that well, this is really a lot more complicated than that.

        4. Similarly, the claim that you changed your mind between the election and the day you cast your EV is not plausible.

        5. Electors are agents of their states’ voters.

        1. Congress could simply pass statutes addressing all the statutory positions. It could, for example, require judges to pledge under oath that they will aupport or oppose abortion, gay marriage, etc.

          Why does complexity matter? A promise extracted of prospective judges would be just as simple. You promise to oppose gay marriage, what gives you the right to turn around and support it?

          One could argue that no ethical prospective judge should sign a pledge to take a position on a future case. But maybe no ethical perspective elector ought to sign a pledge promising in advance to support a particular candidate in a future electoral vote. States have managed to find unethical electors willing to make these commitments. Doubtless Congress could find unethical judges willing to do the same.

          Nothing in the constitution actually says that the judiciary has to be independent. If people want direct democracy and want the people to decide cases badly enough, this idea of judges being these wise people exercising their own independent judgement could be just another archaism, out of touch with the times.

          Nothing in the text of the constitution explicitly says that they can’t be mere proxies playing a purely formal role and expected to decide matters as they pledge to.

          1. maybe no ethical perspective elector ought to sign a pledge promising in advance to support a particular candidate in a future electoral vote.

            I fail to see what is unethical about this. The would-be elector pledges to support a specific candidate, and this is known to voters beforehand. Where is the problem?

          2. Congress could simply pass statutes addressing all the statutory positions. It could, for example, require judges to pledge under oath that they will aupport or oppose abortion, gay marriage, etc.

            Good luck.

            Why does complexity matter? A promise extracted of prospective judges would be just as simple. You promise to oppose gay marriage, what gives you the right to turn around and support it?

            That question might be simple. Others not so.

            Anyway, while this sort of thing might be interesting as an abstract point of discussion, it’s also something I find irritating when those with an axe to grind bring it into the real world, mostly to prove how clever they are.

            The fact is, I don’t want some random group of people I know nothing about choosing the President. I doubt many of us do. If you want to go over the Constitution with a fine-toothed comb, and start talking about who’s an officer vs. who holds an office and so on, to justify letting that happen, leave it in the yeshiva. When it comes out it has real world consequences, bad ones.

            1. The fact is, I don’t want some random group of people I know nothing about choosing the President.

              Uh, isn’t that the system we have now?

              1. If you mean the voters, I wouldn’t consider them a random group, and we actually do know something about them, in the aggregate.

                If you mean electors, they aren’t, or shouldn’t be, making independent choices.

                1. I meant the former.

            2. I don’t want some random group of people I know nothing about selecting the President.

              If you don’t like it, ask your state legislature to give you more information about them before you vote for them, more information than just a pledge they made. Or lobby to amend the constitution.

              Our constitution calls for the President to be chosen by a small group of electors. The only role it allows citizens l to have is to help select them, should state legislatures choose to give them that role. Once selected, or at least once they show up and begin to vote without having committed a major crime, electors are on their own.

              Whether you like the constitution or not is besides the point.

            3. Also, plenty of people don’t want 9 random people they don’t even get to select (whether they know anything about them or not) deciding issues like abortion and gay marriage.

              The analogy still holds. The only difference is, if anything, here the text of the constitution specifically says the electors vote for president.

  10. 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. I agree the concerns about bribery were overblown. Corruption can be policed, but due process is required and it can’t be done merely on rumor. Due process depends on the circumstances. This case need not determine exactly how much process is due.

      The situation may be like regular colleges. You don’t need a full criminal conviction to expell, but you can’t do it just on one person’s uncontested say-so either.

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