One who engages in a rebellion or one who would perpetrate a bait and switch on the people of the state by voting contrary to the binding pledge. Rather than as proxy voters, they are free to do so. The states determine how to select electors and ensure they meet the relevant requirements and perform their duties as assigned. This means they can oversee bribery as the power to appoint. This must include the power to remove and elector without requiring a full criminal trial. Under my friends position as a practicality, they would cast a valid and illegal votes. In this case the state presented him from casting the ballot just like it is an illegal ballot if you dont find it here in colorado. As the court explained the purpose reflected the reality that the act did as pledge agents for their Political Parties and the history of such should be given great weight. As the justices point about the importance of enforcing the pledge requirement, its worth noting people rely on such as this take involuntarily. It would be have nothing of value. States continue to enact a law to enforce the pledge. Congress diverted to the Plenary Authority and no other has invalidated the pledge funding wall if mr. Chief justice, i would welcome your questions. My first question is to ask if there is anything general said on behalf of the state of washington with which you disagree. I would add a ringgold heated introduced the amendment. The constitution gave the states the authority and the tenth amendment underscores that point. What you state for me exactly what you think the limits on the state power to replace the electors are. I would echo my colleague from washington it governs whether or not another constitutional provision is violated. The 14th amendment quite notably means the state couldnt remove based on race or religion. Also the qualifications clause means you cant remove for the purpose of adding notifications for who can be president. If you selected electors and requirements that have to be relatives of the legislators, that would be all right . Here in color rather we pick them in 1976. The state legislature did it directly. As long as that doesnt violate the provisions they can pick whoever they want. What if the rule is they are choosing pursuant to slate but anyone who says anything disloyal to the state between the time where selected and the time they cast their vote will be replaced . Once people are voted to make a choice people have the right for the battle to be counted. To note about lots of people would be invalidated after the fact and the sports line of right to vote cases. What about the bribery cases were bribery hypotheticals that have been discussed . And the ability to remove is crucial for the states to have and not only after the criminal trial but after there is a basis for this concern. If the state failed to remove the bride elect or come of the state wouldnt have violated the constitutional provision. It would violate the duty. Authorized to remove those that have taken a bribe if that is your question. What about the power to remove the argument . It seems to cases involving the power to appoint if by executive officials or the president do say that it carries with it the power to remove. That has always been with respect to inferior officers and the electors here it seems to me are not inferior. They carry rights as appointees carrying a federal responsibility as well so i dont see how those support your position. Your honor, we disagree. The constitution clearly gives states plenary power over electors and acting as a steward of the president ial election system. That means if they were to take a bribe, for example, or not to show up its on the state to address that point. If you only elect to congress in the final instance, that would mean all congress could do is remove the elector and not have it be counted. The states can do is replace and make sure the state as the constitutionally authorized votes in the Electoral College. As such they played a Critical Role and that includes the power to remove. Thank you, general. I wonder if you think under our precedent standing where the person is removed from an elected office. Your honor, the cases involving removal from an elected office involves an official with a salary. What is unique is there is no salary or other personal injury. For this at issue is the issue with salt and has made clear in the line of cases the individual doesnt have standing to challenge that he or she may believe it is unconstitutional. At what point do you think that there would be . Justice thomas, insofar as someone gives up a salary like an executor, you have this fact. If its an honorary position, volunteer position, there is no personal injury. There is a quarrel with each institutional role. On a separate issue. Throughout i guess our history thereve been not pledges, but can you point out the first state law that require ledgers in the history . I can. It was oregon tha but did so ine late 19 teams and what i want to underscores that wasnt the first time in elector was removed. In 1912, nebraska without any binding vaulted remove and elector promised to violate the pledge because the court in that case the Nebraska Supreme Court said it would have been a fraud on the people of nebraska. You attach your self to the argument of the general. Could you give me what your take is on the . With pleasure, justice thomas. That doctrine doesnt really fit here. Under the constitution is the role of the states as the stewards overseeing the president ial election process. The typical federal function case you are worried about the state interfering with a federal official. Here as the court has made clear multiple times, electors are not federal officials. They are appointed by and overseen and transmit the vote of the states. Thank you, gentlemen. Justice ginsburg. Can you give us an idea of the practical consequences of a ruling one way or another . How would a ruling against you actually alter the democratic process . Most states already require elector pledges to and this voting throughout the years has always been rare. So how much difference does it make . Your honor, the chaos that could result from upholding the ruling is one that could occasion a crisis and as was noted by my colleague from washington if the states have no ability to remove dried electors and all thats left is the ability to choose to count or not count the fact in an open enough way with knockout with limits but who could vote in both leftbrace way the outcome of the president ial election. Its the rul role of the state o oversee confidence to ensure the public voices heard in all of those values are at stake in this case. Returning to the standing question come after being removed from his post, isnt that a stigma at least . One may not have economic consequences, but isnt it a was on his reputation . Wouldnt that constitute . The auditor believed he suffered a stigma and that concern wasnt sufficient to give him standing. I would submit the same rule holds here. Thank you. This is a lawsuit brought against you, the state under section 1983. The courts opinion i take it have made clear a state isnt a person under 1983. Everybody has waived the argument and both sides would like us to rule but can they if someone sues a foreign country under 1983 and the country cant be a defendant under 1983 . Can the party simply get an opinion from the court by awaiting the question . I would start with Justice Ginsburgs opinion where she made claim that whether or not there is a claim for relief anda statute isnt a jurisdictional question. What we are dealing with here under 293 and 11th amendment immunity is Strategic Decisions made by the state in the course of litigation. We made those decisions because we want to litigate on the merits and we believe we have a case on the merits and standing and thats how we have chosen to proceed. My question is o of course he wants a decision from the court that mr. Smith might want a decision about how the constitution applies to somebody in mexico or somebody in russia. Can the parties get that advisory decision by saying the wave of the non jurisdiction problems or the problems that say this statute doesnt apply . This court will opt for courr whatever grounded chooses with respect to if they have to rule on it the answer is no. For us this is one of several strategic questions to litigate. The other question i have is a the first state passed a statute that actually removed or punished a person for voting the wrong way. So, were there cases of bribery that went unpunished and if so, how many and what happened . Were their votes counted although they were bribed . The first statute is the late 19 teams in oregon. Which required a pledge that didnt punish people for how they voted. Regardless, same point. We dont have the history of what types of changes were made. As the professor knows and debris for example in michigan there were those that just didnt show up and were replaced on the day they had to meet. We havent had those that are upset about having been replaced or not counted. My question has to do with bribery and before the first one was passed a were their instancethereinstances of an elg bribed and if so, how was it handled . We dont know of any such instances, your honor. Justice alito. In past elections were their campaigns to influence electors after the popular vote was cast for the purpose of either reversing the results produced in the electoral coach by the popular vote were throwing the case into congress . The most famous such cases have been 76 involving the dispute election. Many other question essentially concerns me with respect to the conditions of all ththe counsel in these two cases and that is limitation if any on the arguments are being made. So is it your position that state has power to remove and elector and if not, under what circumstances can and elector not be removed . From mcpherson we have the Plenary Authority oversight and removal power and the constraint on that is other independent constitutional conditions such as those we discussed previously under the amendment. Supposed the legislature is in the hands of a Political Party other than the party of the candidate that wins the popular vote. Can they simply remove all of the electors that were pledged to vote and replace them with others . This is an important point. But the first answer your question and get to a slightly different one that raises the same concerns. If the legislature announces the procedure in advance and gives people the right to vote and they exercise the right, they cannot undo the public right to vote without violating the right to vote line of cases however if they acted earlier essay in the prior spring to change the process and to give itself the power to appoint electors, not the power in the hands of the people, that is the choice state legislatures could make. It was litigated whether or not they could move from the winner take all to the district system there was a partisan motivation for the change and the court said the legislatures power was plenary. If we agree that the legislature has plenary power to remove electors, then wont the people of your state understand when they cast their vote for president at the legislature has the power to remove the electorate and replaced with others . Its that the public be told what they are voting on. The public has a right for their ballots to be counted and they said that the tenth amendment reserves only those powers that the state hav had prior to the ratification of the constitution how can the tenth amendment support you consistently . Thank you, justice. I would suggest a similar principle to what Justice Kavanagh articulated earlier. If you have a close case you avoid creating chaos and if you have a close case you avoid intruding on federalism concerns and that is grounded and represented in the tenth amendment. Your honor, as a strict matter that is what the tenth amendment does, but theres also be interpreted principal picked up for example in gregory versus ashcroft says when looking at and trojans on state power and limits on state power you do so lightly. He ended hi his argument by giving a number of hypotheticals he said if the state can do what you are doing and the state can also say enforce pledges to vote only for candidates who visited the state or who released her tax returns or take the position on certain issues. Is that right . Not necessarily. The tax returns have been litigated under the clause in california and it said it constitutes adding the qualification to be president. Moreover, there there is also n independent question about whether or not you could have a state saying we wont allow someone to be on the ballot if they havent done it y. And z. And in the california case it wasnt in this context but access to the ballot that it arose. If you rely on the qualifications, sai could it influence on the qualification . In other words that the candidate have actually received more votes than anybody else in your state . I wouldnt interpret that because the right of the states to have a system where people could be heard as part of the original constitutional design and then again confirmed in the Fourth Amendment itself. So its obviously a pretty normal understanding of what they do but if you assume that they were meant to use their own discretion than the vote was not required and it would be imposing equivocation. If you assume they have this discretion, you assume the answer to the case we would say they dont have that discretion at all. But you are assuming they answer in the same way, arent you . It sort of depends on the case so i dont think that you can get rid of him so easily as they would like to. 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 us we say in this design could be an additional qualification. Thank you, counsel. Justice gorsuch. I would like to continue the same line of questioning. If states enjoy plenary power to remove electors what would prohibit them from passing the ball to say that all have to vote for president ial candidates that support certain positions or who have done certain things or have visited the state . I understand your argument that is the states cant change the rules after the election and have to provide a notice. But they did it well in advance what would prohibit them from doing so in your view . Im trying to square how this fits with the popular vote system because if you give people the power to vote and they exercise the power, then the argument is you count their vote. What i believe he would be getting out a is a preclearance process where you have to be clear what could be on the ballot before people can vote on them. You indicated it would be fine for people that have an advisory vote for those two then make the final decision. Why couldnt you also have a system in which they provided advice and certain parameters set by the legislature . I think that is the same context i had in mind basically you would give an advisory vote and afterthefact theyve been alerted prior to the fact. I understand your point. In advance they been notified that they are free to provide advice to the electors whatever the number may be. The advice though is going to be bounded and there are certain things they have to do because the legislature says to abide by or be removed and again as a president ial candidate visited the state and has taken this or that position that he or she turned over their tax returns, whatever the position may be, it is a bounded choice and this is just another which prohibits the state from doing that . In this situation som, the se can have limitations as long as they comply with other constitutional provisions. The requirement to visit the state i dont believe clearly violates any constitutional provision. The tax return issue we noted raises the question that could be a real concern and its who they can vote for. Is that the qualification problem ia qualification proble . If it would be because if you told them vote for whatever it would be a concern as you could be adding a new qualification and thereby disqualify somebody from being president for the constitution. What about political positions or use a the state is permissible in your view. I dont see off the top of my head any constitutional constraint that would address that issue. After this it is plenary or exclusive as the court said. The state can oversee and remove those who dont follow requirements the state deems appropriate. Thank you, counsel. Justice. Thank you chief justice. General, what is the purpose of having electors . When they are set up in the constitutional design, that allows for states to make a choice. They can either vote as proxy voters on behalf of the public as we do here in colorado or they can be free agents by having the structure uniform across the several states to give the ability to choose which model they want. But if that were the design, why not just leave it to the states as opposed to going through these details about how they are supposed to operate. As you know Justice Jackson and gray looking at that history said no one faithful to the history can deny the plan contemplated was that they would be free agents exercising an independent and nonpartisan judgment for the people best qualified for the nations highest offices. So, that and why is not a choice but actually requirement that the states did this kind of independence, freeagent status. And why go through all the details if its the way . I guess im asking you more details as they have these designs close to what Justice Jackson articulates and where you hang your hat. Is the delegation of the authority to the states. James madison said the Electoral College was all about giving the states authority to oversee president ial elections as the sulfate and as the majority noted, contemporaries of the founders did indeed see the proxy voters on behalf of the public and that was absolutely the backdrop to the amendment so i would also point to the amendment as effectively confirming and accepting the fact they can be and indeed most often or proxy voters, not free agents. Your honor, there were a series of compromises between separating powers, between the states and federal government and between the state. This was one of those compromises that was reached at the final days of the constitutional convention. Thank you, counsel. You have a minute to wrap up if you like. Yes, mr. Chief justice. As we noted, its all about state authority. And on the theory of my friends on the other side, states have no Authority Even to remove the electors short of a full criminal trial. They gave the states the authority and expected them to exercise it in ways that were sound. Thats what has been the histoy of these el