Transcripts For CSPAN Supreme Court Oral Argument In Chiafal

Court. The question is straightforward. To the states have the power to control, through law how an elector may vote . The do not, the words of constitution against the background of the framers naked clear that the states have no such power. What is also make it clear that the states have no such power. What is also clear is that washington does not like the design. Votes cast that the are not, as the constitution expressly describes them, their votes, but instead of the votes of the state, article 2 effectively gives the states the power to cast votes for president in such manner as the Legislature Thereof May direct. The actual article 2 does not give the states the power to cast votes. It gives the states the power to appoint electors. The actual electors that the constitution creates, have a legal discretion, as every unfettereds, not an discretion, to the contrary, it is a completely fettered discretion, fettered by moral and political obligations, not legal constraints. To vettons alternative discretion in citizens may be a but the question for this court is not which plan would be better. The question is which plan is the constitution now . The answer to that question is clear in the constitutions text. Butstates get to a point, they appoint electors who are then privileged to cast their votes without regulation by the state. Chief Justice Roberts do you saying no find is simply requiring a perspective elector to take a pledge ok in your view . Mr. Lessig absolutely. Having nounderstood, legal obligation, but a moral obligation, is perfectly fine as part of the appointment power of the state. So, thestice roberts addition of a sanction makes no difference . Mr. Lessig the sanction makes all the difference, so long as there is not a legal sanction and a pledge is appropriate. Context of the speech and debate clause. You cant punish somebody for a vote in congress, but there is nothing inconsistent with the speech and debate club in asking a member to make a pledge. States, right now, ask a member to make a pledge as a condition of being a party member. Chief Justice Roberts if there were a fine of one dollar, you would say that violates the constitution, but if it is simply a pledge, no violation at all . Mr. Lessig thats right because of fine is a legal obligation. It crosses the line because the state has no such power to impose such an obligation through law. Chief Justice Roberts your argument is not that the sanction must have coercive effect. Simply, if it is only a symbolic requirement, it still violates the law . Mr. Lessig no. It is symbolic requirement, it is an important moral obligation when you take a pledge, but it cant cross the line and become a legally coercive obligation. Consistent with the freedom that the constitution grants electors to vote by ballot. Chief Justice Roberts so by legally coercive, do you mean Something Different than simply coercive . In other words, if you add one dollar, that becomes legally coercive . Mr. Lessig thats right. Just like with the speech and debate clause. If you fine a congressperson one dollar for their vote on the floor of congress, that violates the speech and debate clause, but there is no problem with saying to that congressperson, to be a member of the Republican Party, you must support the platform of the Republican Party. Chief Justice Roberts under your view, there would be no way to enforce the popular vote referendum . Mr. Lessig the National Popular vote compact, is that what you mean . Chief Justice Roberts right. Assuming that gathers enough support and becomes law, they would be no way to enforce it . Mr. Lessig that obligation requires the states to pick a slate of electors that fits with the winner of the popular vote. Those electors would have the same legal discretion we believe any elector has. If there is a National Popular vote contact, the number of electors would be so significant it would be very hard to imagine any discretion affecting the ultimate result. Chief Justice Roberts thank you, counsel. Justice thomas . Justice thomas thank you. Just a preliminary question. Should we ask ourselves whether or not the state is granted the authority to regulate the vote of the elector or should we ask ourselves whether the constitution prohibits the state . Mr. Lessig i think you can ask the question both ways and it is the same answer. The only argument the state has made in washington, in the washington case, is an argument the question is whether the appointment clause gives them the power to control, and we believe they do not. As an elector given the obligation to vote by valid, does that ballot, does that obligation entail a protection from legal operation. We believe it does. We believe it creates an immunity from being punished for how one votes. Justice thomas when you make your federal function argument, does that depend in part on your view that the elector has discretion . The federal function establishes the discretion, your honor. It is exactly the same as in the whereof hock and lesser the question was a state legislator ors discretion legislators discretion to vote on an amendment. It works for the people of the state, subject to the constitution of the state. Oaxacan lesser established was ist that States Legislature free of the imposition of the state either through referendum or on the constitution itself, when the legislator votes on an article of the amendment. That is the same amendment we think a president ial elector has. Justice thomas how do we determine what the contours of the federal function would be . Mr. Lessig i would look just to the text. Is aederal function function in casting a ballot as the 12th amendment describes and any additional steps it requires, which is to name the president and Vice President. Which thee function constitution gives to electors to stage from the power to appoint. Justice thomas is the 12th amendment mentioned discretion . Mr. Lessig no. The 12th amendment mentions the course, byf requiring a list of the people implies there is more than one person that can be voted for. It also doesnt mention the state at all. Yet, the way the state conceives of it, the state is a proctor that stands in the room as the electors cast their votes looking over their shoulder. That is nowhere in the 12th amendment. That state doesnt appear except to name where the electors will meet. Justice thomas can the state remove someone i just wonder what limits, what authority the state has. Can the state remove someone who openly solicits payments for his or her vote . Lessig you can certainly of course, this court has said limit state can certainly corruption. Justice thomas where does the Authority Come from . Mr. Lessig burroughs versus the United States found it inherent in the federal power to be able to protect federal elections from corruption. In fitzgerald versus green, they saw it as incidental to the power to appoint electors to be able to assure the election, in that case, the vote by the people, was consistent with law. Either of those could create the authority to avoid corruption. Of course, corruption, like bribery, is independent of the vote. You dont need to police the vote to be able to police corruption, just as with the speech and debate clause, you can convict a congresspersons bribery, even though it includes the vote that might have occurred. Chief Justice Roberts Justice Ginsburg . Wasice ginsburg i surprised at the answer you gave to the chief about ray. I would have thought that under discretionte elected view, ray would have come out differently under your theory. Mr. Lessig no. We think Justice Jackson was completely right about the original understanding and we think Justice Jackson was completely wrong about what followed from that original understanding. The framers didnt believe that electors would exercise independent judgment, but they did not inscribe that belief into the text of the constitution. They could have. Marylands Electoral College had that text in the constitution to constrain discretion any particular way, but our constitution didnt. The question in ray was whether the power state had the power to discriminate on the basis of political affiliation and loyalty when picking electors. After the 12th amendment, we believe that is perfectly obvious. They have the power because that is the function of the Electoral College is has come to occupy. Justice ginsburg it is somewhat hard to understand the concept of something i am pledge bound to do. I have made a promise to do something. Unenforceable. Mr. Lessig i understand, your honor, and it is difficult until we recognize how familiar it is. Every single political pledge is of this character. We couldnt find a single case in the history of political pledges where pledge has been considered anything beyond a moral obligation. One case where texas requires candidates to pledge to support the candidate of the democratic party. That was upheld explicitly on the ground. That was simply a moral obligation. We can see in the context of congress again. There is no problem with requiring a member of the Republican Party to pledge to support the Republican Party as a condition of being a candidate for congress. We understand the speech and debate clause to say that you cannot punish them for their vote. The pledge is not inconsistent with the speech and oblate clause. It is perfectly speech and debate clause. It is consistent because a moral obligation. Justice ginsburg thank you. Chief Justice Roberts Justice Breyer . Justice breyer good morning. State can appoint people, requirement that they be person permanent residents of the state. That is all right, isnt it . Mr. Lessig of course. Justice breyer and then, can they say you must be a permanent resident at the time that you cast your vote . Mr. Lessig yes. And then what and who is mr. Smith then what happens if mr. Smith changes his residency and goes to a different state before the vote is cast . Now, he is not a permanent resident. He hasnt met the states requirement. Could the state also say, in case that happens, we have an alternate who will cast a vote . Mr. Lessig yes, we believe they can. Justice breyer there is a difference between that and this situation where they say you must promise to vote for the person who wins the most votes, and then he gets to the room, and in that room, he doesnt live up to that requirement, just as he didnt live up to the requirement that he be a resident of the state. Mr. Lessig your honor, the difference is, the line between the appointment and the voting. The constitution draws that line. It says that congress can set the time of the appointment, and it can set the day on which the vote is cast. We believe incidental to the appointment of power is to appeal the power of the state to assure there is an elector there that will perform the function, the federal function of balloting. Once the voting starts, the state disappears. The state does not appear at all except to name the location of the vote in the 12th amendment. It certainly doesnt stand there to observe whether some of the someone voted properly. Justice breyer if, in fact, he changes his residence 10 minutes casts hiscast his vote, then you could remove him. When in fact, he actually cast a vote. Surely someone who cast a vote for jones into the black has, in fact, changed his mind tenant before. Could you not remove him for that change of mind . Mr. Lessig no, because the pledge is a pledge made prior to the appointment. Justice breyer it is not a pledge in my hypothetical. It is a requirement that he, in fact, cast not cast his vote, but be a person willing to cast his vote for mr. Jones, the majority winner, at least 10 minutes before. Im just trying to make it as close as possible to the person who changes his residence 10 minutes before. Mr. Lessig but again, the constitution gives the states no power to regulate the boat. Vote. They have the power to appoint. Ray said they can say you must make a pledge to support. The party at the time the party. At the time my clients made the pledge, they absolutely pledged to vote for the nominee. Chief Justice Roberts Justice Alito . Justice alito . Justice alito yes. My question is similar to Justice Breyers. Arrivedan elector is between the time of the popular vote and the time when the electors vote. Can the state remove that elector . Your honor, we believe that prior to the vote, the states power is the incidental power exists to assure the power person who shows up is not engaged in criminal activity. It is difficult to imagine how that plays out because to claim someone has been bribed is a charge and needs to be proven. We believe that is going to be a difficulty with the bribery, but lets remember that the framers expressly considered this problem. Expressly said the reason to not have electors is that they could be bribed. What the framers saw is that there could be two risks, the risk of bribery, but also the risk of corruption Justice Alito your argument must be either that the electors cannot be removed by the state. The state says at least some removal power goes along with the employment appointment power. I think your argument has to be, they cant be removed or there are at least some circumstances in which they can be. If there are some circumstances in which they can be removed, such as when the elector has why would the violation of a pledge not be one of those circumstances . Honor, we haver said the bride is different from a pledge because the bribed is proven bribe is proven separately from how one votes. We recognize there is a capacity to regulate bribery. Question is perfectly framed because i do want to assert that there is no power to remove prior to the vote. Onepower that comes from article is the power to fill a vacancy once the vacancy occurs. It is not the power to create a vacancy. That is the structure that the constitution establishes as well. Justice alito so the state cannot concede by removing an elector who has been bribed . Mr. Lessig yes, unless the bribery statute makes as a penalty removal from office and there is a conviction prior to the actual time at which the vote has been taken. Justice alito one other question. Those who disagree with your argument say that it would lead to chaos. Where the election, where the popular vote is close and changing just a few votes would alter the outcome or throw it into the house of representatives, if the rational response of the losing Political Party or elements within the losing Political Party would be to launch a Massive Campaign to try to influence electors. Period ofd be a long uncertainty about who the next president was going to be. Do you deny that that is a good possibility if your argument prevails . Mr. Lessig we deny it is a good possibility, we dont deny it is a possibility. We believe there are risks on either side which is a good reason to avoid the constitutional interpretation. We agree that the possibility exists that you could flip electors. Look historically at the number of times that could have mattered. In the history of electors, there has been one elector out cast who,507 votes have switched parties against the Majority Party in a way that could have mattered. The first time it happened was 1976. Chief Justice Roberts Justice Sotomayor . Justice sotomayor counsel, you compare the Electoral College to a jury arguing they are structurally similar under the constitution. You cant remove a juror because of his or her vote. But if that is true, i dont see how that helps you. A juror makes all sorts of pleasures pledges, to be impartial, not to discuss the case, not to research the case with the party, to tell the truth. Yet, if a juror is selected, it violates one of those pledges. Save a juror talks about the case with the other jury members. Empowered to remove that juror. Electort a president ial subject to being removed in the same way . Pledge. Ade a particular different than remaining impartial, but he has told the people who appointed him, i will vote in this particular way. You call it morally, commit thyself. So why isnt that any different than a juror who says, i am not going to do this, and then does it, and a judge can remove him . Mr. Lessig your honor, you have identified the core immunity that a juror has. That is the immunity in the vote to convict or not. Is immunity that cannot be regulated or punished or fined according to the court within the state. There are other obligations, you are right, that you can be held to account for. We think that is perfectly parallel to the president ial elector. They have immunity in his or her vote. Of course, sitting in the elector room, he cant cause a disturbance, cant threaten somebody with a weapon, cant engage in any number of criminal activities that might interfere with the opportunity to perform the duty. There is a particular immunity because the immunity to vote is immunity from penalty for vote just as the speech and debate clause cases have made clear. Justice sotomayor you rely a lot on history in your argument, but doesnt mcpherson undermine your position very directly, just like ray does in some extents . In those cases, the court made clear that whatever the framers expected, and here, you make a the argument that some of framers originally expected electors to have discretion. Practice offered a practical interpretation of the constitution. That is what ray said. Mcpherson said experience soon mistreated that the electors were chosen simply to register the will of the appointing state. Doesnt the same principle undermine whatever you think some of the framers expected, the historical practice at least since