Welcome to the final installment of the National Constitution center can see spent wrap up of the remarkable two weeks that we have just experienced together pretty for the first time in american history, this ring for it has been broadcasting light oral arguments in the National Constitutional center in cspan have been here with you to convene the arguments to bring together americas leading ideas on each side and to Learn Together about the arguments we just heard. We have now developed a ritual together at the beginning of our learning by reciting these and mission of the National Constitution better which comes from the u. S. Congress and bicentennial of the constitution. Some friends, here we gor. Percent along with me. The National Constitution center is the only institution in america chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis in order to increase awareness and understanding of the constitution among the American People. I have a chills every time a recited and that is just what we have been doing together in the spirit of learning, and thank you for engaging in this experiment with us and im so excited now to welcome you to talk about the remarkable arguments about what we heard about whether or not the statebo of washington and colorado can pass laws requiring electors to vote for the president ial candidate though they pledged to elect pretty joining us to discuss this crucially important and deeply interest interesting question are david kopel and paul smith. In support of the president ial electors, his Research Director of the independentnt institute d associate policy analyst with the cato institute. An adjunct professor of constitutional law at denver. As stern. And paul smith filed a brief on behalf of the Company Legal center in support of the state pretty he is Vice President litigation and strategy of the Campaign Legal center is a distinguished visitor at Georgetown University law center rated david and paul, thank you so much for joining us. David we will begin with you because you are representing commissioners we are in the arguments that in the first case the petitioners represented by professor when first. Tell us if you will, what provisions of the constitutional text do the electors rely on to support their argument that must have the power under the constitution to exercise independent judgment in state laws permitting them from exercising independent judgment violates the constitution. David think he thinks i say our article two section one point created the original system for how the president would be elected and then the modifications to that in the amendment that was adopted in 18 oh four and then changed voting provisions left move most or all of the relevant provisions from article two injection actually repeated them in similar language in their keywords are electors. Because elect or someone as all of the dictionary show, from the time, the law dictionary examine johnson dictionary and everything else. Also websters dictionary of the american english language from 19282 are specifically cited when he defined the word mentor is someone who cant make an election have a choice. He actually pointed specifically to the american president ial and use them as an example produce their their keywords are in the dark, boat, and ballot. All of which are the process they go through which does seem to imply discretion and free choice. And just in kayden waited out that you have a soviet style election pretty you go through the boat. But thats not really election. In the strongest words on the other side, as mr. Smiths brief pointed out very well or a point that the states do get to appoint the electors in every wide discretion in that. The question the way i would frame it would be with the ward points followup all of the other words are on those words like electric, the limits on in some sense on how much control the states have over electors after they have been appointed. Jeffrey thank you so much for that. You call your attention to article two. Section one and we have the method of choosing electors, each state, shall appoint in such manner as the legislature made a number of electors equals the senators. But no senatorng or rep. Or pern holding an office of trust or profit under the United States shall be appointed and elector. In the second part of article two, of section one, says it came up often in the oral arguments, why is it that the framers exempted them from being electors the response was they did not want to be choosing them. Paul smith, the text of article rather the trump amendment, was also much quoted in your brief argued that the 12th amendment which was passed in the wake of the failed election 1900, and recognize the Political Party for the first time, she did the understanding of electors has exercising independent judgment and presumed that they would follow their parties call and basically beat faithful representatives of their party pretty tell us about how you think that this is relevant and how you would respond to justice kagans conclusion that the text is not entirely clear. Paul linking innovation of course would require the electors to have separate votes for president and Vice President. And they wouldnt dip in the tide much like the dude in the 18 hundreds. And i think this is not really disputed but the emergence by 18 oh four, a twoparty system and the idea that the electors for one party or the other, or two by then, clenched very frequently to vote for their party. That was an accepted feature of the system by 18 for rated essays make a point here, and that in passing that amendment, they essentially ratified the meaning of the word of elector that says they can be pledged and bound to support a particular outcome. The outcome of the vote in their state. And that states choosing to doo that are just exercising their power. So they can choose the matter of appointment. And justins kagans point, that just makes extent is right. The states argumentt is to partly based on the absence of language in the constitution. That the electors point, anything about combining the power of the state to that of conditions and as i said, this is been since the 1790s. This kind of part of our system. What you end up with here is a linguistic argument. The meaning of the word elect or and the absence of some more compelling suggest that the states are limited in what they can do. Jeffrey many things for all that rated david there was a case that came up often, called brave versus player. 1962 pretty state of alabama could require its electors to become public pledge to support the nominee of the democratic partys. On the grounds of the history was unclear it was not prevented from doing so pretty isnt distancing opinion by Justice Jackson with several of the justices mentioned and he basically defended the original understanding of the Electoral College. He said, ventolin and finkels orchestra can deny the plan originally contemplated. Electors were free agent to exercise their independence and nonpartisan judgment. Nations highest office, he said that that has been superseded. They quoted gilbert and sullivan. The listeners know that i am a big gilbert fan. And just as chief Justice Jackson said, now electors officially became voluntary party, intellectuals whose memory might justly paraphrase to the sapphire, they always voted that the parties call rated and never got to thinking for themselves at all. I love that. My question to you is why is a devotee correct that basically both to historical practice andt Supreme Court precedents, they seem to give states plenty of authority to set the qualification the like. Wouldnt the point to the other side. David they case comes up a lot in oral argument. I agree that that case wasnt characterized mr. Smiths brief. That was the case that alabama primary for people on the balance to be running to be the president ial electors at the general election to be on the ballot, and so they wanted to be in the democratic primary ballot to run the race to potentially be an electric pretty the Alabama Democrat party since do you want to run the democratic primaries coming out of take a pledge to support the nominee of the National Democratic party for president. And this guy did not want to. And hede came out just as he sa, when thedi Supreme Court said n, the democratic party, they want to require repent, that is there legitimate choice. And mr. Smiths brief, point out accurately the court deciding scholarship, law professor and a great scholar of regionalism in the bomb cases. Said the court very carefully did not go over that and say, and therefore you can force electors to vote in a particular way after theyve actually been chosen by them. You can certainly take that his implication and tried to run with them with the court very carefully did not go that far in the rate case and some people want to argue that we should take implication of what they were arguing and take it to the next step but the key thing is that the court in ralph did not take it to the next step so it remains an open issue for this current court. See what many thanks for that. They kill mark, was miklawrenceh of them have such power on your side of the case. And paul smith on the other side, and just aspire was pressing precisely his point. And he said that its okay to require pledge of but not to enforce the penalty. Are you persuaded by the distinction and why do you believe the text history and tradition on the other direction. David there is some things that suggest its okay for the states to be an elector. And some will punch how they will but in advance pretty one state says that they cant do anything about it. They ignore that fact. An appraisal source of strange nest about the system. In the argument of into these questions about what does the states power can anything with the elector after the election day and before the meaning of the Electoral College. Is there any power during that time. For the state to enforce the pledge or do something else. We have a lot of discussion about what happens that the election takes a bribe. What if the elector says im just not going to show up. I rather not test of it that forces a series of compromises by the professor. At least have some power from the states to after the appointment in the election and before the electoral, to do something which creates a kind of stopping point problem i would say. Jeffrey thanks for that. David, and as justin kagan put it, this is not strictly an argument that the left is making about the original understanding of the constitution rated justin kagan said that might be for medication. But after the ratification certainly by the time of the 12th amendment, things switched and we adopted this new understanding so are you hanging your hat, excuse the expression, the Justice Kevin agape. Are you saying that that textual meaning of the word elect very close the power to make sure an independent judgment the canopies constrained or is there rasomething beyond that argument at thehe core of yours. David certainly we can start with that. In our brief, which is founded on the principle of the declaration of independence. It was surely originalist. There are lots of important issues in this case but we wanted to give the court the most solid and explanation of the original meeting. Its not only the original meeting of the Philadelphia Convention convention, but the debates after but then in the discussion following the ratification but most importantly i think 19 oh four when the 12th amendment was ratified all the discussions pros and cons about changing the system of the president ial election, the electors vote for twoen people, or did they vote n one time or a president and then have a separate balance for Vice President. The pro and con discussion of congress,systems in always based on the explicit statements now electors to have the discretion. So of course they were recognized for their partys existence. The point is 19 oh four, those were for or against for new system, all agreed electors did happen would continue to have discussion and they made their arguments for the new system with that in mind. Jeffrey thank you for that. Paul can you respond to davidsa argument about the original understanding about the 12th amendment and why you believe that the creation of the twoparty system in 1900 actually allow the state to constrain or not electors place rated. Paul by the time we got to this issue, they were there and adores and pledges from the royal to the parties and everybody, understood that thats who those people were. So the respondent argument is that the debate, people understood the word elector in different ways. And different understanding back in the ratification stated in the lesson in history, says that conception has been placed ever since pretty 44 states do not an infant electors names on the lollots. Because, everybody assumes and understands that the electors were merely a placeholder cast a vote in favor of the people they were pledge to support. We dont think of them is exercising expression. And we have not for 200 years suggesting to be o ultimately a lesson in history and that history about plates. One of the things the course of done is to look at how their arrangements have been worked out and hownd that system is ben operated. F the arguments from the states are they arere to be understoodf the powers of the acting pledges. It works much better if we can rkenforce them. And theres a possibility of electors overturning anov electn pretty. Jeffrey thank you for that. David, he said that if states are able to do so, they might forbid electors from voting in elector who has not visited the state or released tax returns as new york and new jersey proposed predict their partisan opportunities throughout history, and the history suggest that they electors should be able to exercise discretion. On the other side, just as kavanaugh said we generally got the principle of chaos and if we give electors to some better discretion that they might be lobbied and bribed and we would have referral so tell us more about the horribles that such this would happen would seem to be a reality in some states whether you believe that it is and why you believe it. I think both sides did a good job pointing out there separate brain of horribles pretty. David and many both of those are potentially true in one of the things the court was addressing a lot in the oral arguments is a definitely the first one, was as the two sides framed it, they really came in with the very absolute position on either side with the electors say what is recorded. And the states got no power at all. And then on the other side of the state coming in and saying, no our powers would point, it is so immensely best that you may have been appointed in november and thenha when youre in say december 9th, actually voting by ballot with the person that you choose for president. The ballots can be stashed awayt and there will be treated as if he somehow resigned your appointments. I call the justices seem to think that those went way too far. In one of the questions was can we just focus on the one issue. Can a state punish and elector for the choice of the electric mates. In terms of the catastrophe on both sides the potential of, for constitutional guidance is the 20th amendment. And addresses the question what do you do from those from the early 1930s, what happens after the Electoral College, and we have the president formally chosen by them. Maybe transmitted the results to congress, or the dead. In the 20th amendment provides us a mechanism on how to address special. It is notable with that when 20th amendment was being passed, the never addressed the issue of what happens in between the general election day in november, and when the Electoral College meets in december, what happens of the president or Vice President dies then and the reason is they knew theyth didnt have to because the elect doors would be able to make the choices. They maybe ron devitt say that they made the Campaign Promise to vote for somebody another dead. And then at their december meetings would address that. Jeffrey could you respond to that point. Do you think they can make independent judgments. Listen one side of the side of horribles, what cannot states do. When they could independently in violate or discriminate on the basis of race and maybe they could not require the president to turn over tax returns. That would impose an additional qualification on who can be president in violation of a qualification term. So unpackk that response. The fact that it doesnt address when the elected person dies. Dont see how that in any way indicates something lacking power that would if he is still alive how would that affect it. The Electoral College. So it seems like what it does is it leaves the states fully in control of what to do in the unusual event with which someonn dies. I dont think the answer to the question of whether the pledges can be made if the if the state chooses to do so, make them enforceable if the person dies. While there might be better answer for that to be addressed missing may be that the Vice President can. But in terms of the horribles, seems a little bet my feet arguments is looking for a limit on how this is seen this week at the Supreme Court. I thought the attorneys, did a pretty good job of saying are d some things that we cannot do with reported power like Racial Discrimination or alter the qualifications of the president. The general, and in practice what it means, as weve all chosen election popular luncheon. To decide who we choose. In the pledge that we have voluntarily taking on that role. So didnt strike me that the frame of horribles is the stateside was a particularly effective of a method of argument from the justices on the other hand the justice, and others seem