We will hire argument next in case 19 518, the Colorado Department of state versus michael baca. I noted at the outset that Justice Sotomayor is recused in this case. General weiser. Thank you mr. Chief justice and may it please the court. The constitution authorizes states to use their authority to whove a bribed elector, one engages in rebellion or one who would perpetrate a bait and switch on the people of their state by voting contrary to a binding pledge. By contrast, if a state wishes to treat electors as free agents rather than as proxy voters, it is free to do so. In short, states determine how to select electors and ensure that they meet the relative requirements and perform their duties as assigned. This means under green that states can oversee bribery as an incident as a power to appoint. This must include the power to remove and elector without requiring a full criminal trial. Under my friend mr. Lessigs position, as a practicality bribed electors would cast ballots and illegal notes. The state prevented mr. Baca from casting and illegal ballot. Just like its an illegal ballot if you dont sign it. As this course explained, the purpose of the 12th amendment reflected the reality that the states actors acted as pledge agents. Point Justice Ginsburg about the enforcing of a pledge requirement, its worth noting people rely on such pledges which are taken voluntarily. Voting requirements would be of litter value if not enforced. Enact have continued to laws. Congress has consistently deferred to the authority and no court other than the 10th circuit allow has invalidated the binding law. I would welcome your questions. My question is to ask if there is anything that general purcell set on behalf of the state of washington with which you disagree. A slightd only add wrinkle. He did indeed endorse our 10th amendment argument. What i would say is the 10th amendment is an important interpretive principle because the constitution gave the states authority over the elections. Would you state for me exactly what you think the limits on the state power to replace electors are . Your honor, i would echo my colleague from washington. Notoverns whether or another constitutional provision is violated. The 14th amendment quite notably means a state could not remove and elector based on race or religion. The qualifications clause means you cant remove electors for the purpose of adding qualifications for who can be president. You selected electors, one of the requirements as they had to be relatives of the legislators, that would be all right . Here in colorado we picked electors in 1976. The state legislature did it directly as long as that choice doesnt volley light violate a constitutional provision. What if the rule is the electors are chosen pursuant to slates but anyone who says stateng disloyal to the between the time where selected and the time they cast their vote will be replaced . Honor, as my colleague from washington noted, once people are voting to make a choice, people have a right for their ballots to be counted. , the ballots of people would be invalidated after the fact. That implicates this courts line of right to vote cases. Any other limitations on the power of the state . Ort about the bribery cases bribery hypotheticals that have discussed . Have been discussed . The ability to remove bribed electors is crucial for the states to have and not only after criminal trial but after there is a basis for this concern. To your point, if a state failed to remove a bribe elector, the state would not have violated a constitutional provision per se, it would have violated its duty as a sound overseer of president ial elections. Thats even after the electors have been chosen. Go ahead. The state is indeed authorized to remove electors who have taken a bribe, if thats your question. Yes. What about your power to appoint argument . It does seem certainly our case is involving the power to appoint if by executive officials or if the president to say if it carries with it the power to remove. Withhat has always been respect to inferior officers. And the electors here it seems to me are not inferior in any way to the state legislator. Appointeesrights as carrying out federal responsibilities as well. So i dont see how those authorities support your position. Honor, we disagree. The constitution clearly gives states plenary plow or power acting as a steward over the president ial election system. That means if electors were to take a bribe or not to show up, its on the state to address that point. If you only left this to congress in the final instance, that would mean that all theress could do is remove elector and have it not be counted. The states can replace and elector and make sure the state has the constitutionally authorized vote in the Electoral College. Critical role, a and that includes the power to remove. Thank you general. Justice thomas. Brieferal, you start your questioning standing in this case. I wonder if you think under our precedent, there is standing when a person is removed from an elected office. Your honor, the past cases involving removal from an elected office like powell involve an official with a salary. Whats unique here is there is no salary or other personal injury. Whats at issue is the institutional role itself. As this court made clear in smith, an individual doesnt have standing to challenge an institutional role that he or she may believe is unconstitutional. So in a removal case, at what point do you think there would be an injury in fact . Insofar as someone gives up a fact. , you have injury in on a separate issue, throughout our history there not pledges among electors. Me the point out to first state law that required pledges in our history . I cant. It was oregon that did so in the late 19 teens. What i want to underscore is that wasnt the first time and elector was removed. In 1912, nebraska did remove and elector who had promised to violate the pledge because the court in that case said it would have been a fraud on the people of nebraska. You attach yourself to the arguments of general purcell. I understood to his comments on the phone on the scope of the federal concept or argument. Could you give me what your take is on that . View is that doctrine doesnt really fit here. Under the constitution, its the role of the states as stewards overseeing the president ial election process. The typical federal function case, you are worried about a state interfering with a federal official. Here as this court has made clear multiple times, electors are not federal officials. They are appointed by and transmit the vote of the states. You, general. Justice ginsburg. Idea ofou give us an of practical consequences ruling one way or another . How would a ruling against you actually alter our democratic processes . Most states already require elector pledges. Voting throughout the years has always been rare. So how much difference does it make . Honor, the chaos that could result from upholding the 10th circuits ruling is one that could occasion a constitutional crisis. Colleagueed by my from washington, if states have no ability to remove bribed electors and all thats left is congresss ability to choose to count or not count the mere fact of bribing electors in an open enough way would knock out electors, would limit who could vote and ultimately could sway the outcome of president ial election. Its the role of the states to oversee confidence in our election systems, to ensure the publics voice is heard. Values, thehose integrity of our elections are at stake in this case. Returning to the standing question. Baca was removed from his post. Isnt that a sigma at least . It may not have economic consequences, but isnt it a blot on his reputation . Wouldnt that constitute a cognizable injury . Auditor inor, the smith believed he suffered a , and thattigma concern of his statement was not sufficient to give him standing. I would submit the same rule holds here. Thank you. Justice breyer. This is a lawsuit brought sectionthe state under 93. The courts opinions i take it have made clear that estate isnt a person under 1983. Everybody has waived that argument. Both sides would like us to rule. But can they . If someone sues a foreign country under 1983 and a foreign country cant be a defendant under 1983, can the party simply get an opinion from this court by waving the question . I would start with Justice Ginsburgs opinion in the northwest airline case where she made plain that whether or not there is a claim for relief in a statute is not a jurisdictional question. What we are dealing with here both under 1983 and 11th amendment immunity is Strategic Decisions made by our state in the course of litigation. We made those decisions because we wanted to medic gate litigate the case on the merits. Thats how weve chosen to proceed. Yes, but that isnt my question. My question is of course you want a decision from this court. But mr. Smith might want to decision about how the constitution applies to somebody in mexico or to somebody in russia. Can the parties get that advisory decision by simply saying, we waive all the jurisdictional problems. All the nonjurisdictional problems. All the problems that say this statute doesnt apply. Courttice breyer, this will opt for whatever ground it chooses with respect to whether the court has to rule on this issue, the answer is no. This is not a jurisdictional question. For us this was one of several strategic questions on what grounds to litigate. The other question is i take it that its only in 1960 that the first state passed a statute that actually removed or punished a person for voting the runway. Of briberyeir cases that went unpunished before 1960 . Was there a single case . If so, how many . And what happened . Where their votes counted although they were bribed . Thehe first statute was in late 19 teens in oregon. There were statutes that required a pledge that didnt punish people for how they voted. But regardless, same point. We dont have a history of what types of changes were made. We know they happened all the time. Inprofessor hardaway notes, michigan there were electors who just didnt show up who were replaced on the day that the Electoral College had to meet. We havent had electors who were upset about having been replaced or not counted. That isnt my question. My question has to do with bribery. And before the first statute was passed more than 200 years after the constitution was first created, where their instances of and elector being bribed and if so how was it handled . We dont know of any such instances, your honor. Past elections, where their Concerted Campaigns to influence electors after the popular vote was cast for the purpose of either reversing the results that was produced in the Electoral College by the popular vote or throwing the case into congress . The most famous such case would have been in 1876 involving the tilden hayes disputed election. My other question is essentially the same one that concerns me with respect to the positions of all the counsel in these cases and that is limitation if any on the arguments being made. Is it your position that estate has planar power to remove and elector . Not, under what circumstances can and elector not be removed . Mcpherson, we see induce Plenary Authority over the removal power of electors and the constraint on that is other independent constitutional conditions. Suppose the legislature is in the hands of a Political Party other than the party of the candidate who wins the popular vote in the state. Legislature remove all of the electors who were pledged to vote for that candidate and replace them with other electors . Important point. Let me answer your question and then get to a slightly different one. If the legislature announces the procedure in advance and gives people the right to vote at my exercise that right, the legislature cannot undo the publics right to vote without violating the right to vote line of cases. However, if the legislature acted earlier, say the prior spring to change the process to give itself the power to appoint electors, not the power in the hands of the people, thats a choice state legislatures could make. Litigatedon it was whether or not a legislature could move from a winner take all to a districting system. There was a partisan motivation for that change and the court said the legislatures power was plenary. If we agree with you that the legislature has plenary power to remove electors, then once the people of your state understand when they cast their vote for president that the legislature has the power to remove the electors pledged to the candidate they favor and replace those electors with other electors . What we are asking for, what we believe the right to vote cases require is that the public told what they are voting on. For the chief justices earlier question, if the public is told you are merely casting an advisory vote as opposed to a binding one that you can expect will be followed, thats a different case. Right tos the best vote case that stands for that principle . Itin grey versus sanders says the public has a right for their ballots to be counted. Thank you counsel. Justice kagan. First on your 10th amendment point, why doesnt thornton foreclose that argument . I would think that the power that we are talking about here is not such a power but instead was created by the constitution in the first instance. How can the constitution support you with warrenton . A similar suggest principle to what Justice Kavanaugh articulated earlier. Justice kavanaugh noted the cast principle means that if you have a closed case you avoid creating chaos. We would say you avoid intruding on federalism concerns. I thought that was only as to the powers that the states held prior to the ratification of the constitution. As a strictr, matter, that is what the 10th amendment does. There is also the interpretive principle picked up in gregory versus ashcroft that says when looking at intrusions on state feds, you doo the so lightly. Lessig ended his argument by giving the number of hypotheticals. He said if the state can do what youre doing, a state can also enforce pledges to vote only for candidates who have visited the state or release their tax returns or who take a position on certain issues. Is that right . Not necessarily. The tax returns issue has been litigated under the qualifications clause in california, and the court said that could constitute adding a qualification to be president. Theres also an independent question about whether or not you could have a state saying we wont allow someone to be on our ballot in the state at all if they havent done x y and z. It was access to the ballot context that the issue arose. Couldnt you be said to be imposing a qualification too . That the candidates actually received more votes than anyone in your state . Wouldnt interpret that as a qualification to be president , particularly because the right of the states to have a system where the people could be heard is part of the original constitutional design and confirmed in the 12th amendment itself. Its obviously a pretty normal understanding of what elections do. If you assume that these electors were meant to use their own discretion, then the popular vote was not required and it would be imposing a qualification. If you assume electors have this discretion, you have assumed the answer to this case. We would say they dont have that discretion at all. But you are assuming the answer in the exact same way, arent you . What is or is not a qualification sort of depends on this case. So i dont think you can get rid of mr. Lessig so easily as you would like to. Your honor, our position is that the constitution is silent on whether or not you can have electors representing how the public votes. That is inherent in this design and thus we say what is inherent in design couldnt be an additional qualification. Thank you counsel. I would like to continue the same line of questioning. It states under a plenary power to remove electors. What would prevent them from passing a law to say that all electors have to vote for president ial candidates who support certain positions or who have done certain things or who have visited the state . I understand your ex post argument, that states cant change the rules of the election after the election. And have to provide voters notice. But if they did it in advance, what would prevent them from doing so in your view . Im trying to square how this fits with popular vote system. Because if you give people the power to vote and i exercise the power, then our argument is you count their votes. What i believe you would be getting at would be a preclearance process where you have to prewhat electors could be on the ballot before people could vote on them. Let me just interrupt you. Im sorry counsel. Youve indicated it would be fine for people to have an advisory vote to 12 wise people who would then make the final decision. Why couldnt you also have a system in which the people provide advice within certain parameters set by the legislature . I think thats the same context i had in mind. You would basically give people an advisory vote and then after the fact you would have to ask. Fireey have been alerted prior to the fact. In advance, they have been notified that they are free to provide advice to 12 electors and their advice is going to be bounded and there are certain things that the electors have to because the legislature says abide by or else they will be removed. And those are again, as a president ial candidate visited the state, has he taken this or that position. Has he or she turned over her tax returns. Whatever the conditions may be, its a bounded choice. You have argued that choice can be bounded. What prohibits the state from doing that . The state can add limitations as long as they comply with other constitutional provisions. And do those . The requirement to visit the state. Ae tax return issue raises qualifications clause question that could be a concern. The president ial candidate is on the ballot. Its who the electors can vote for. Is that a qualifications problem in the states for you . It would be because if you tell electors they can only vote for pick whatever the concern would be, tax returns, people over 50. The concern is you could be adding a new qualification to be president and thereby disqualify and affect someone that the constitution would qualify to be president. You said visiting the state is permissible. That condition would be permissible in your view. I dont see any other constitutional constraint that would address that issue. Is position is the power plenary or exclusive. The state can oversee electors and remove them who dont follow requirements the state aims appropriate. And q counsel. Justice kavanaugh. Thank you counsel. Justice kavanaugh. What is the purpose of having electors . Thank you. When electors are set up in the constitutional design, that allows for states to make a choice. Vote as can either proxy voters on behalf of the public or they can be free agents. Structure unif