Electoral College

The Return of the "Faithless Elector"

The Supreme Court agrees to hear two cases on the scope of presidential elector discretion

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As I predicted here, on Friday the Supreme Court granted certiorari in two consolidated cases (Chiafalo v. Washington (10th Cir.) and Colorado v. Baca (CO Supreme Court)) raising a significant question of constitutional law that the Court has never squarely addressed before: whether the Constitution, which expressly grants plenary power to the individual States to appoint presidential electors (Art. II sec. 1), permits those States to direct presidential electors to vote for a specific presidential candidate and to enforce those directions via ex post punishment, or whether, conversely, electors have a constitutionally-guaranteed right to use their discretion in deciding who to vote for.

Historian Michael Rosin and I, ably assisted by Michael Donofrio and Bridget Asay of the Stris & Maher law firm in Montpelier VT, submitted an amicus brief urging the Court to grant cert [available here], as well as amicus briefs on the merits in both of the cases at the appellate stage [available here].

So I'm naturally delighted that the Court agreed to take on the two cases.  With the presidential election of 2020 looming just over the horizon, and given all of the attention, good and bad, that the Electoral College scheme has gotten over the past few years, it is, clearly, a question of some importance.

Our briefs have focused on a single, narrow point: that while we all have come to regard presidential electors as performing a purely formal, ministerial function—a "kabuki democracy"-style ceremonial ratification of the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it (in dicta) some time ago:

"No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices." Ray v. Blair, 343 US 214, 232 (1952).

Hamilton's Federalist No. 68 is the primary, though hardly the only, support for this view of the "original expectation" of the Framers. Hamilton stressed the importance of having the president elected by "men most capable of analyzing the qualities adapted to the station," noting that a "small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation."

The original scheme, in short, contemplated that presidential electors would actually elect the president—not merely ratify the results of an election by others. This was part of the Constitution's remarkable, and remarkably ingenious, method of diffusing and diffracting the power to select officers of the new federal government by distributing that power to different bodies of electors: The "People of the several States" would choose Members of the House of Representatives (Art. I Sec. 2); the members of the State legislatures would choose Senators (Art. I Sec. 3); and a third body, composed of presidential electors who would be appointed by each State "in such Manner as the Legislature thereof may direct," would choose the President and Vice-President (Art. II Sec. 1 and Amend. XII).

That scheme has been altered, of course, by express constitutional amendment: the 17th Amendment, providing for popular election of Senators. But no such modification has altered the express terms of the presidential election scheme.

I've never been particularly skilled at predicting how Justices will vote on particular matters, and I'll spare you my predictions here.  One of the fascinating aspects of these cases is how difficult it is to situate the issue presented on some simplistic left-right spectrum. There's an originalism/living constitutionalism axis; strict originalists at the Court may find the evidence of the historical understanding of the electors' role persuasive, or even dispositive, while others more on the steady evolution over time of practices derogating from the original scheme. And there's a federalism axis; some Justices might be receptive to the argument, which has roots in John Marshall's opinion in the seminal case of McCullough v. Maryland, that because electors are performing a federal function, the Supremacy Clause disables the States from interfering with their performance of those functions, which others may believe that it is important to buttress the states' role in the presidential electoral process.

And if the Court were to follow the 10th Circuit's lead (and mine!) and uphold the principle of State non-interference in elector actions, what then? Will it actually change the manner in which we elect our presidents?

I'll have more to say about all that as we get closer to a decision.

NEXT: Vice President Pence's Profile in Cowardice

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  1. Any problems associated with the Electoral College should be diminished by enlarging the House of Representatives, which would diminish the structural amplication of backwater votes.

    I likely would prefer enlarging the Supreme Court first, but the order is not the important point.

    1. Wouldn’t the the winner-take-all format per state leave us with the problem that the winner of the popular vote could lose the election because she lost the purple states?

      1. Do we care if what the popular vote is? I submit that we shouldn’t, under the original organization of our system. Otherwise, as has been argued elsewhere, there is no reason at all to even have the electoral college.

        As far as “winner-take-all” formats at the state level, I would be much happier with proportional representation at that level, so that the 51% majority in a state doesn’t result in 100% of the people voting for a particular candidate. I suppose there are arguments to the contrary but I haven’t done much digging to find out what they are.

        1. Heresolong, only if you believe the people are entitled to self governance.

      2. Enlarging the House (and the Electoral College) would diminish the structural amplification of yahoo votes, not solve all of America’s (ostensible) problems.

        1. I’m pretty certain the purple-state bias is much larger than the small-state bias.

    2. I’ve long thought the House should increase in size as population increases. Along with a repeal of the 17A.
      Unfortunately I believe that will never happen and that direct democracy, aka mob rule, is inevitable, along with all of its problems.

      1. People who figure the House and/or Supreme Court are not to be enlarged seem destined for surprise.

        1. I always expect the worst, so, no, I won’t be surprised.

          Democrats have made it pretty clear that, the next time they’re in a position to do it, (Bare majority in both chambers, and a cooperative President.) they’re going to pack the Supreme court, mandate pro-Democrat gerrymanders, and probably turn the territories into states. So it won’t be particularly surprising when they do that, except to people who’ve been hiding in a cave.

          1. If I had spent my entire life getting smacked silly in the culture war, I would probably have developed pessimistic expectations, too. And maybe even some of the desperation that marks current conservatives, too.

            I thank goodness I chose the winning and better side.

          2. More conspiracies, more nefarious plots.

            I don’t know what you are referring to with that business about the territories, but I would note that the Republican platform for 2016 said:

            “We support the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state. We further recognize the historic significance of the 2012 local referendum in which a 54 percent majority voted to end Puerto Rico’s current status as a U.S. territory, and 61 percent chose statehood over options for sovereign nationhood. We support the federally sponsored political status referendum authorized and funded by an Act of Congress in 2014 to ascertain the aspirations of the people of Puerto Rico. Once the 2012 local vote for statehood is ratified, Congress should approve an enabling act with terms for Puerto Rico’s future admission as the 51st state of the Union.”

            So admitting PR, at least, is not a left-wing plot.

            As to mandating “pro-Democratic gerrymanders,” I have no idea what you are referring to, unless you are again pushing for representation for cows.

            1. If you look closely at an electoral map by census block (the smallest resolution without going into extrapolations) you’ll find that Republicans tend to be geographically widespread, while Democrats tend to be more centrally located (and the vast unwashed independents making up the difference). This difference is even stronger when you overlay other political and geographical boundaries – Democrat’s tend to cluster, while Republicans tend to sprawl.

              Why this matters is because of how gerrymandering works for each party: the Democratic Party is best served by larger geographic units that don’t follow political and geographic boundaries, while the Republican Party is best served by units cut along natural geographic boundaries. An overly simplistic way of looking at this is to imagine a city with an exactly even D/R split: if each district is shaped like a slice of pizza to include the city center and each outlying district then the Democratic Party will hold a majority of seats, while if the city is separated into rings based on distance from city center the Republican Party will dominate. Again overly simplistic, but because the distribution is different the way you draw the lines matters.

              Take San Diego as an example: cultural districts predict voting behavior extremely well: Hillcrest, La Jolla, and the Gaslamp are all solidly liberal, while most other areas are mildly conservative, so where Democrats have a majority they have an overwhelming majority, but where Republicans have a majority they have a small majority.

              This is why Gill v Whitford a few years ago was properly non-justiciable: each side keeps trying to both gerrymander itself while having the courts declare that the method the other side uses is prohibited.

    3. If the Supreme Court were enlarged, how many extra picks would you plan on giving to President Trump?

      Multiplying the number of congressional districts would mean re-drawing district boundaries for hundreds of districts, with opportunities for gerrymandering mischief and boundless litigation. Would any of our existing congress-critters vote for a scheme that could oust them from incumbency in two years?

      1. Any extra picks made by Pres. Trump wouldn’t matter. That’s the beauty of enlargement.

  2. If the Supreme Court determines that faithless electors are constitutionally protected, that will force party officials to exercise extreme diligence in only nominating wholly reliable party members as electors. It’s hard to see the social gain in forcing party officials to perform this extra diligence, when a simple statutory prohibition of faithless electors will achieve the same result. But academics and judges tend to be fond of creating makework, so maybe that will be the result here.

    1. The Constitution can always be amended and the Electoral College has been amended before.

      1. Amending the Constitution to specify that the electors are just discretion free counters selected by the voters would solve the problem, but I don’t see it happening.

        The amendment would be popular enough, but there’s no way Democrats wouldn’t insist on some further ‘reform’ that would act as a poison pill.

    2. y81 wrote: If the Supreme Court determines that faithless electors are constitutionally protected, that will force party officials to exercise extreme diligence in only nominating wholly reliable party members as electors. It’s hard to see the social gain in forcing party officials to perform this extra diligence, when a simple statutory prohibition of faithless electors will achieve the same result
      Very interesting. I don’t disagree – though I am not so certain that a statutory prohibition (presumably at the federal level) would be constitutional. If elector discretion is constitutionally protected – which is NOT going to be decided in these two cases, though I would expect the Court to say a great deal about that question – it’s not so easy for Congress to override it.
      But I do agree that the likely result of a decision to invalidate the State schemes here will be more due diligence by the political parties to find people unlikely to defect. It is something of a paradox: a decision upholding the right of electors to be faithless will likely lead to their disappearance.

      1. I’m not sure why you and the previous commenter think they don’t already do that due diligence.

        Faithless electors come not because the Democrats accidentally picked a Republican-leaning elector (or vice versa), but because they accidentally picked someone with a conscience, and then something happened between the time the electors were selected and the time of the election to make the candidate unacceptable to them.

        1. That’s the theory, anyway.

      2. Why would finding in the electors’ favor invalidate the state schemes? State would be Just as free to require electors to make promises and to represent the promises to the public as guarantees as they were before.

        See my comment below. States are free today to institute direct election of Supreme Court justices. They are just as free to require presidential candidates to pledge which Supreme Court justices they will nominate (if a vacancy arises) and put the names of the Supreme Court justices on the ballots as they are free to require elector candidates to sign pledges and put the name of presidents on the ballot. If they can institute popular elections at one remove, why not two? Voters no more have to know what presidents they are voting for than electors. We could have a system where Supreme Court justice candidates hold public debates and presidential candidates also remain anonymous.

        And why would this scheme be invalidated if the Supreme Court rules that once in office, states can’t require a president to keep his pledges? States would be just as free to put Supreme Court justices’ names on ballots and represent to the public they are conducting a direct popular election for the potential Supreme Court nominees for the next four years and as they are today to put Presidents’ names on the ballot and claim they have a popular election for President.

        1. I think you’ve rather highlighted why the electors can’t be bound, and it’s the same reason that all politicians can’t be bound.

          Could a state require that a candidate for office declare something (which person they’ll vote for President as an elector, who they’ll nominate for court vacancies, etc)? Maybe, but assuming yes, they can’t be bound by that statement, except maybe in the very narrow case of actual fraud – I said I was going to do X but I later changed my mind would have to be disproven compared to I lied about saying it was going to do X when I never intended to.

          But if a state can do that – prosecute a politician for fraud for not following through on campaign promises, they could do so now, and I’ve never heard of such a prosecution.

      3. Professor, can you elaborate on your last sentence?

        It is something of a paradox: a decision upholding the right of electors to be faithless will likely lead to their disappearance.

        I was generally tracking with your comments, but I am not seeing how faithless electors would disappear. How do you make that leap?

        I don’t think a federal statutory prohibition would be constitutional, either. I am in the ‘electors have discretion’ camp. At least, that is what I was taught in civics and history coursework.

        1. The idea is that faithless electors results in a constitutional amendment getting rid of the actual electors.

          1. Oooooooooooh….Yeah well, good luck with that = passing a constitutional amendment getting rid of electors

            Why on earth would a small state ever agree to dilute their power and influence? That alone prevents passage.

            1. A constitutional amendment doesn’t have to mean rebalancing of power. Small states might pass an amendment saying “In the election of the President, each state shall receive a number of vote units equal to its total number of Congressmen, to be apportioned according to state law.” Wyoming still gets 3 units, but no human is appointed, and there’s just a state statute saying “The secretary of the state shall certify the state-wide winner and award all of the state’s units to that individual.”

              I don’t know if large states would be willing to sign off on an amendment that gets rid of faithless electors and still gives bonus points to small states. It’s no worse on paper, but it might be throwing away their best leverage to eliminate the imbalance completely.

    3. “We shouldn’t prevent people from violating the constitution because if we do they will just find a legal way to do it, but it would be more work for them” is certainly a take on the matter.

      1. “Constitutional ambiguities should be resolved in ways that have no actual effect, but create pointless work and enable judges and commentators to pontificate about the majesty of the original document” is certainly a take on the matter.

    4. “The original scheme” was to not let voters cast ballots for president to begin with, not to let them vote and then override them if they chose wrong. The latter is just offensive.

    5. This all sounds right to me.

      Too many lawyers, especially academics, just want to demonstrate their chops.

  3. Several states have signed on to an interstate pact that would require electors from their states to vote for whomever won the national popular vote. I can’t help but wonder if the conservatives on the Supreme Court will take that into consideration and vote not to dilute the power of the red states.

    1. I agree and I think the smart money would be on a decision against the electors. As you note, the only states that have adopted NPV are blue or at least bluish-purple, and the EC is generally perceived as favoring red states. So that weighs against upsetting the status quo as far as SCOTUS conservatives are concerned. And in the specific context of this case, you of course had a Democrat-led effort consisting of mostly Democrat electors trying to prevent Trump’s election. Doesn’t seem like that’s going to garner much sympathy among the conservative wing either. Past experience also shows that the conservatives aren’t exactly shy about seizing opportunities to get one of their own elected. See Bush v. Gore (2000). Finally, the states’ rights end of the federalism “axis” would seem to have more currency in this situation. I see the only question as how the Court is going to rule against the electors – on the merits (WA SC majority), mootness/no standing (CA10 dissent), or maybe even a political question somehow? RBG and Sotomayor would likely dissent but it seems possible that Breyer and/or Kagan would sign on.

      But if conventional wisdom ends up being wrong, I could also see an opinion in full-blown originalism mode that favors the electors. As part of that, it might be argued that the practical impact of upsetting long-standing practice would be minimal or nonexistent. After all, 18 states don’t even have laws binding electors, and of the 33 (including DC) that do, 20 still honor a faithless elector’s vote. Relatedly, of the 33, only 4 currently penalize a faithless elector. (Ironically, WA is no longer among that number because in Apr. 2019 it replaced its statute with the uniform law on “faithful” (lol!) electors, which only provides for vote cancellation and removal of faithless electors, not a fine. Strangely, the WA SC decision was less than a month after the uniform law was enacted, but I can’t seem to find any mention of it in the decision – you’d think it would at least be acknowledged in a footnote somewhere.) And of course, faithless electors have never affected an election since. So a decision in their favor wouldn’t seem to hold much in the way of practical consequences.

      Note that I’m sourcing all my data on this from fairvote.org.

      Finally, if the Court really struggles over its decision, the Justices might end up suffering from insomnia. https://www.youtube.com/watch?v=P8JEm4d6Wu4

    2. The NPV Compact does not require the electors to vote for the national popular vote winner. It instead requires the slate of electors chosen be those pledged to the candidate that won the national popular vote. As such, I’m not following how a decision in these cases would dilute the power of red states (*)

      (*) I assume for the sake of argument that the national popular vote favors Democrats even though that hasn’t been the case in the past.

      1. Have never understood the carping re how SCOTUS allegedly threw the election to Bush. A nearly year-long, ballot-by-ballot, statewide recount sponsored by a consortium of independent news organizations (NY Times, Washington Post, WSJ, etc.) showed that Bush won Florida by several hundred votes.

        “EXAMINING THE VOTE: THE OVERVIEW; Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote”:
        https://www.nytimes.com/2001/11/12/us/examining-vote-overview-study-disputed-florida-ballots-finds-justices-did-not.html

        Whistling Willie

    3. While the states do appear to be free to choose their electors as they like, the NPV is an interstate compact and as such requires the approval of Congress. Has NPV received that approval, and if so, can Congress rescind it?

  4. What’s the point of Electors then if they’re not allowed to make any decision?

    1. An excellent point. I suspect that many who support the EC system do so with the assumption that the Electors are bound to the state results. I have to wonder if that support would be as great if SCOTUS supports the Electors free choice?

    2. No point. Even if you want to keep the EC, you don’t need the electors.

  5. Then and now, Electors were and are elected. We now simplify the ballot by substituting the candidates’ names in place of the slate of Electors. I believe the first controversy over ‘faithless electors’ was Adams v. Jefferson. The issue is not new, nor is state control over the slate of Electors.

    1. Good point. If electors are free to be faithless, then their own names belong on our ballots.

  6. I was taught in school that the electors were free agents, and could elect someone other than the candidate who won their state. To me, it is a final check against the people. I guess that puts me in the Justice Jackson camp on this topic.

    1. Why should there be such a check, especially by a dishonest person?

      First, of course, voters do not in general even know the names of the electors. Are we supposed to pretend that the voters are entrusting the business of choosing the President to people they’ve never heard of?

      And if electors did campaign, wouldn’t they do so on a promise as to how they will vote? If so, it’s ridiculous to allow them to break that promise.

      If an “independent” slate wants to run, on a “trust us” platform, let them. I doubt they would do very well.

  7. C’mon people

    “As such manne as the legislator shall enact” clearly empowers a state to completely control the electors. If a state legislature says the electors must vote for the candidate who receives the most votes in that state, that is clearly Constitutional. Similarly, if the legislature states that an elector shall vote for the candidate who gets the most votes in a congressional district, that is clealy allowed.

    The Constitution does not limit a state in any way. Get over it, Supreme Court.

    1. As such manne as the legislator shall enact” clearly empowers a state to completely control the electors.

      When something gets to the Supreme Court level, it is because it isn’t “clear.”

      And your argument is nonsensical, since (even fixing your misquotation), “In such manner as the Legislature may direct” refers to how electors are appointed, not how they conduct themselves after they are appointed.

    2. If, even during your misquote, you omit the relevant part of the Constitution, odds are that you’re completely wrong.

      Like in this case.

      State legislatures are permitted to decide how Electors are APPOINTED. The text clearly demonstrates that AFTER they have been APPOINTED (what a pesky, recurring word), that they gather in their respective States and VOTE.

      Voting requires a choice. Once they’ve been appointed, the Constitutional authority of the State to influence or control their decision ends.

      It’s simple fucking English.

  8. Even if a State can punish a faithless elector (after the fact), his/her vote can still count. The state that ruled the vote of a “faithless elector” invalid was almost certainly acting improperly.

  9. (Chiafalo v. Washington (10th Cir.) and Colorado v. Baca (CO Supreme Court))? Oops. WA is in the 9th Circuit & “Chiafalo” is a WA Supreme Ct case. “Baca” is Federal case out of the 10th Circuit, wherein CO resides.

  10. States are just as free to decide to elect Supreme Court justices by popular election as they are to elect presidents. All they need to do is to ask presidential candidates to identify perhaps three or four Supreme Court justices they plan to nominate, and then put the name of the Supreme Court justices, not the name of the president or the electors, on the ballot. The electors would then pledge to elect the president who pledges to nominate the state’s Supreme Court justices if elected and a vacancy opens.

    This would be every bit as much a direct popular election of Supreme Court justices as we have direct election of presidents today. The states’ plenary power to appoint electors lets them refuse to appoint electors pledging to support presidents who don’t pledge to appoint the stated Supreme Court judges, and the states could require all kinds of oaths and threaten to impose all kinds of penalties on Presidents who fail to keep their promises.

    Why wouldn’t such a ballot arrangement be just as constitutional as the current one of putting the names of Presidential candidates and not the elector candidates pledging to support them on the ballot? There’s no reason we can’t have direct popular election of Sipreme Court justices in this country, or at any rate an election that’s similarly direct to the way citizen’s votes for president are currently handled?

    And why wouldn’t Presidents, once elected, be every bit as bound by the election pledges they made than electors are bound by their appointment pledges? If states can require electors to keep their pledges, why can’t they require Presidents to keep theirs? And conversely, if Presidents once elected don’t have to keep the oaths they made and the penalties can’t be enforced, why should electors have to?

    1. If states can require electors to keep their pledges, why can’t they require Presidents to keep theirs?

      Because the elector promises to do one discrete, clearly observable, thing, and then go home. It’s a wholly predictable decision, trivial to monitor.

      Not so with Presidential promises, the fulfillment of which generally require cooperation from Congress, deals with foreign countries, etc.

      1. I don’t see why states can’t monitor Presidents’ nominations of Supreme Court justice candidates any less easily than they currently monitor Electors’ votes.

        And fundamentally, states’ ability to deliver on their promises or enforce conformance to pledges has no bearing on their ability either to promise or to pledge. Just as states can promise voters the electors they vote for will support a particular Presidential candidate and require elector candidates to pledge support, it can equally well require presidential candidates to pledge support for particular supreme court justice candidates, require elector candidates to pledge support for the presidential candidates who support them, put the Supreme Court justice candidates names on the ballot, and promise voters they are electing Supreme Court justice nominees should a vacancy open. By having fine print saying voters are voting for nominees contingent on a vacancy openning, not actual justices, the presidential candidates’ pledges become no different from the elector candidates’ pledges.

        Of course they can do it. They have plenary authority to make any promise they want to the voters and require any pledge they want from anyone as a condition of electors being appointed.

        And just as electors once in office may or may not keep their pledges, so presidents once in office also may or may not keep theirs, and there isn’t a thing stated can do if they don’t.

        In both cases promising and pledging is no guarantee promises and pledges will be kept. The fact that there’s more slip between cup and lip In the case of Supreme Court justices doesn’t affect the hypothetical procedure’s constitutional validity.

  11. I strongly disapprove of the electors being faithless, outside of extreme circumstances, like one of the candidates being discovered to be a criminal after the election. They run for the position already committed to a particular candidate, changing candidates after they’re selected is a breach of trust absent some really, really strong cause.

    But I’ll be very disappointed in the Supreme court if they rule that electors don’t have this discretion; The originalist case for their having it is iron clad.

  12. Hypothetical question. Is there anything in law that would prohibit a state from requiring its electors to cast their votes for the candidate who lost the popular vote in that state?

    Whistling Willie

    1. There is actually no requrement that the states allow citizens to vote at all. The Constitution allows state legislatures the ability to choose how that state’s electors are chosen. The legislatures could just decide to allocate electors based on a vote by the legislature, by letting the governor appoint, or by some complicated formula involving campaign dollars spent and local weather report accuracy.

  13. Any one care to guess what will happen to the NPV scheme if cherry red Utah lowers its voting age to 12 and supplies the winning difference to Trump.

    NPV only makes sense with a uniform electorate, and uniform election procedures. Ballot harvesting is legal in some stated and a no no in others. It gets really whacky if some state adopts acceptance voting.

  14. “The original scheme” was to not let voters cast ballots for president to begin with, not to let them vote and then override them if they chose wrong. The latter is just offensive.

    1. No, electors were selected by popular election in many (but not all) states since the early days of the Republic. Elections are perfectly good means of selecting electors.

      What’s new is having candidates for elector make campaign pledges about what they will do once in office, and concealing the names of the elector candidates, the people voters are actually voting for, from them, representing to voters that are voting for a pledge, not a person.

      Of course, there’s nothing new about office-holders not keeping their campaign pledges once elected. That, too, has been going on since the early days of the republic.

      What’s offensive here is the attempt to conceal from voters what’s really going on. Without any, knowledge of the candidates for elector except a campaign pledge they may or may not keep, voters have no way of assessing how likely they are to keep their word or how they might exercise independent judgment should they choose to.

      1. That is, voters don’t cast ballots for president today anymore than they did before. They cast ballots for slates of electors, as they always have. It’s just that today the names of the elector candidates are concealed, and all the voters know about the people they’re voting for is is one piece of information, a campaign pledge they’ve made.

        But voting for an elector who pledges to cast a ballot for a particular presidential candidate no more means citizens vote for those candidates than presidential candidates pledging to nominate particular individuals to the Supreme Court means that citizens are voting for the Supreme Court justice candidates. Voting for someone who promises to elect or nominate someone to a different office doesn’t mean one is actually voting for the office the promises are being made about.

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