and the question in these cases is straightforward do the states have the power to control from a law how an elector may vote they do not the ordinary expected meaning of the words of the constitution against the background of the framers deliberation make it clear that the states have no such power but what is also clear is that washington is not like the constitution's design it asks this court to read the word a lector as agent or maybe better minion and it declares that the votes electors coude are not as the constitution expressly describes their vote meaning the electors votes but instead of the votes of the state article two in washington's hands affectively gives the states the power to cast votes for president in such manner as the legislature there of major racked but the actual article two does not give the states the power to cast votes it gives the states the power to appoint electors and the actual electors that the constitution creates have a legal discretion as every elector does not tend on saturday discretion as washington puts it to the contrary it completely fettered discretion just fettered by moral and political obligations not by legal constraint washington's alternative to quote vast discretion in citizens rather than electors may be a better plan least of part of a coherent change but the question for this court is not which plan would be better the question is which plan is the constitution's now and the answer to that question it's clear in the constitution text the states get to appoint no doubt but they appoint electors who are then privileged to cast their votes without regulation by the state mr lessig do you object to the project so there is no fine or any other sanction is simply requiring a prospective elector to take a pledge  context not your honor of the of the speech and debate clause of course you can't punish somebody for a vote in congress but there's nothing inconsistent with the speech and debate clause and asking a member to make a pledge and he states right now ask members to make a pledge as a condition of being a party member so if there were a fine of one dollar you would say that violates the constitution but if it's simply a pledge no violation at all that's right because a fine is a legal obligation it crosses the line because the state has the no such power to impose such an obligation to law so your argument is not that the sanction must have coercive effect it's simply a if it's only a symbolic requirement it still violates the law no your honor it's a symbolic requirement it's of course an important moral requirement a moral obligation when you take a pledge it can't cross the line to become a legal equal worst of obligation consistent with the freedom that the constitution grants electors to vote by bal one dollar for is speech or his vote on the floor of congress comes violence and speech and debate clause but there's no problem with saying to that congress person to be a member of the republican party you must pledge to support the platform of the republican party discretion and legal discretion that we believe any electorate has but of course if there is a national popular vote compact the number of electors for the winner would be so significant it would be very hard to imagine any  the vote of the electorate or are is should we ask ourselves whether constitution prohibits the state then i think you can ask the question both ways and it's the same answer both ways the only argument the state has made in washington in the washington case is an argument grounded in your point because they don't invoke the th him and i'm so that the question is whether the applying the clause gives them power to control and we believe they do not but then you can look at it from the other side and ask as an elector who is given an obligation to vote by ballot does that obligation entail a protection from a legal regulation and we believe just as the speech and debate clause does it creates a that that state legislator is free of the in positions of the state either through referendum or constitutional on the constitution itself when dad legislator votes on an article five amendment and that's the same immunity that we think which is to name the president and vice president make a list and so forth sign and certify incentive for and that's the function which the constitution gives to electors to steam from the power to a point which may also describes nation discretion no the th amendment mentions the votes and of course by requiring that someone make a list of the people that was voted for them plies that there's more than one person that could be voted for but of payments for his or her vote you can certainly of course this court have said in burrows and in fitzgerald the greens the state can certainly regulate corruption and bribery would be corruption and we believe that it's power to be able to protect federal elections from corruption fitzgerald versus green they saw it as incidental to the power to appoint electors to be able to assure that the election not to vote by the people was consistent out differently and do you know your honor we think jack 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 did believe that electors would exercise independent judgment that's absolutely clear but they did not inscribe not believe into the text of the constitution that could have maryland's electoral college had that text in the constitution to constrain the discretion in a particular way but our constitution didn't which means that the question in re was whether the state had the power to discriminate on the basis of political affiliation and loyalty when picking electors and after the th amendment we believe that's perfectly obvious they have that power to discriminate because that's the function that the electoral college has come to occupy it's somewhat hard to understand the concept of is it's difficult until we recognize how familiar it is every single political pledge is of this character we couldn't find a single case in the history of political pledges of pledges been considered of anything beyond a moral obligation you cited because in a choice of texas democratic party case where texas requires candidates to pledge to support the candidate his democratic party and that was upheld explicitly on the ground that that was simply a moral obligation and we can see that in the context of congress again again there's 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 but we understand that speech and debate clause to say you can't punish them for their vote thank you good morning counsel state hand in point people requirement that they be permanent residents of the state t not of course of course and then could they say and you must be a permanent resident at the time that you cast your vote yes and then what happens if in fact mr smith who is a permanent resident when elected changes his residency and goes to a different state before the vote is cast now he is not a permanent resident he hasn't met the state's requirement and so could the state also say in case that happens we have an alternate who will cast a vote yes we believe they can because the harm and 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 get to the room and in that room he doesn't live up to that requirement just didn't live up to the requirement that he be a resident of the state your honor the difference is the line between your point and i'm the voting the constitution draws that line it says  that congress can set the time of the appointment and we can set the day on which the vote is cast and we believe incidental to the appointment power to the power of the state to ensure that there is an elector there who will perform the function the federal function in fact he actually cast a vote but surely a person who cast a vote for jones instead of black as in fact changed his mind ten minutes before and so can you not in fact remove him because of that preceding change of mind ten minutes before no because the pledge is a pledge made prior to your going on a pledge in my hypothetical it is a requirement that not cast his vote but that he in fact be a person willing to cast his vote for mr jones the majority winner at least ten minutes before i'm just trying to make it is close as possible to the person who changes his residence ten minutes before but again longer the constitution gives the states no power to regulate the vote they have the power to appoint an incident to the power to appoint race and they can say you must make a pledge to support the party nominee and at the time my clients made their pledge they absolutely intended to vote for the party nominee so the registration that's authorized by ray has nothing to do with what you described which is the difficult to imagine how that plays out though because of course the claim someone has brought in bride is a charge it needs to be proven and so we believe there's going to be a difficulty there with the bribery but let's remember that the  considered this problem joined george mason expressly said a reason not to have electors and that could be brought but what the framers saw is that there were two risks there was the risks of electoral bribery but there was also the risk of differently from separately from how one votes so we recognize that there's a capacity to regulate bribery but what are your question is perfectly framed because i do want to assert that there is no power to remove prior to the vote the power that comes from for example to be u s c for which congress gives the states the power to fill vacancies if the power to feel a vacancy once the vacancy occurs it's not the power to create a vacancy and that's the structure that where the election where the popular vote is close at changing just a few votes would alter the outcome or throw it into the house of representatives there would be a 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 and there would be a long period of uncertainty about who the next president was going to be  idea that here's a good possibility if your argument prevails we do know it's a good possibility you don't deny it's a possibility we believe there are risks on either side which is a good reason to avoid the risk adjusted constitutional interpretation we agree that of course the possibility exists that you could flip electors look historically at the number of times that could have mattered in fact in the history of electors there has been one  so you compare in your brief the electoral college to a jury arguing that they are structurally similar under the constitution you can  remove majority because of his or her vote but if that's true i don't see how that helps you a juror makes all sorts of pledges to be impartial not to discuss the case with anyone jury members the judges of power with others and the jury members the judge is empowered to remove that juror so why isn't a presidential elect subject to being removed in the same way he has made a particular product different than remaining in partial but he has told the people who have appointed him i will vote in this particular way i you call it morally commit myself so why isn't that any different than a juror who says i'm not going to do this and then it doesn't and a judge according to the court to convince state there are other obligations your rights that you can be held to account for we think that's perfectly parallel with the presidential election the presidential elector has an immunity in his or her vote but of course sitting in the electorate room you can't cause a disturbance you can't somebody with a weapon you can't engage in any number of criminal activities that might of course interfere with the opportunity to perform the duty there's an agenda there's a words the ordinary expected meaning of the words the framers used in the constitution so when macpherson kagan i'm going to let a so let me ask you about those words as i understand it most of your argument depends on a particular formally people cast ballots at least formally at times when there is no choice think of a soviet style system or you know think of somebody who has has pledged chief justice roberts has described that the best way to understand these words the best dictionary is the constitution itself the constitution speaks of the lector into context article one speaks of what justice thomas is referred to as congressional elect voters and we believe that freedom of congressional elections is exactly the freedom of presidential electors and we understand the authority of this court to stablish that the office of justice kennedy put it in his opinion since of the elector the electors there the congressional elector is created by the constitution and it's free of constraints either private constraints or state constraints so it's the same sense of elector that the constitution used of course the critics said we need by elector in article one someone who has freedom and discretion but by article to mean what will become the soviet union conception of electors that would have been possible we're not saying it's impossible to imagine because we're sa to what happened in the very st elections under the constitution where you know a media play right away electors associated themselves with political parties pledge their votes ahead of time and that practice that is continued for over two hundred so if your meeting isn't demanded by dictionaries but is instead demanded by context and history doesn't the context and history suggests the asta your honor we believe the context and history supports the idea absolutely that electors where the pledge themselves were not signed that the constitution required them to be hamilton's philosophers that's not our claim our claim is that the discretion that they created in the office of electors survives so just look state for example ask an elector to make a sworn statement as to his present intention to vote for a particular candidate make a pledge oh yes and could a state later prosecute that elector for perjury if that statement under oath if there is evidence that that was false statement in principle absolutely your honor we think in practice that would be just say that will pay your expenses and give you your service but only if you carry out your promise to vote in a particular way that you pledged actually no that's what washington's new law in fact does  ineffective penalty as well why couldn't it do that if you could do the other well again you're on the differences between a legal consequence or a legal penalty based on your judgment  involves a false statement at the time the pledge is made in our case our electors absolutely intended to plan to vote for hillary clinton and hillary clinton i'm not asking about your client to stick to the hypothetical imagine that someone has committed a criminal act ok on the basis of the criminal act in theory they could be punished that's right but the difference between an elector who gets compensated based on the vote or not based on the vote is a difference driven by the substance of the constitutional discretion that electors are given not federal function in balloting the right to vote and with respect to the perjury example could the state remove that conviction which involved a vote in congress is the vote is not not counted that's just a consequence of going separation between you indicated earlier questions that you thought it was fine for a bride elect or to be if you could structure the statute and can succeed in the conviction but of course the perjury requires at the time a false statement thank you counsel justice kavanagh thank you mr chief justice good morning mr lester and i want to follow up on justice alito as line of questioning and what i might call the avoid principle of judging which suggests that if it's a close call or tie breaker that we shouldn't facilitator create chaos and you i think answered and said it hasn't happened but we have to look forward and just being realistic judges are going to worry about chaos so what do you want likelihood of that is extremely small but what we've also said is there's risk on both sides the th amendment self consciously presupposed electoral discretion in the context of the death of a candidate prior to the vote in the electoral college and if that happens but laws like washington and colorado and the exercise of discretion then the votes from those electors could in principle be wasted and that could throw the decision into the house and i could slip the result also unexpected also potentially creating chaos so there's chaos both ways and the number of times we've had a candidate die is actually twice as frequently as we've had can as we've had a lecterns switch their vote and vote for somebody from the  think of this as the voters versus the electors and that your position would in essence potentially disenfranchise voters in the state your honor of course in our case the action question is the question here is now whether the constitution requires the states to bind electors of course it's whether the constitution permits states to bind electors and on that question why doesn't the th amendment as justice or example justice thomas could point to traditions that allowed at the state to exercise the power that they wanted to exercise there there is no tradition in america maybe in the seven union it's just scares me and kagan suggest but not in america of a government exercising control over a voter over an elector that power doesn't exist therefore it's not a question of whether it was taken away by the federal government it wasn't given it wasn't there before and the thank you you can take a minute to wrap up if you'd like thank you your honor the questions here has got to be the constitutional and the pragmatic and the constitutional question is simply the question whether there is a power in the states which comes from the power to appoint and there isn't and this is also the question whether the electors as electors the same sort of electors that article one creates how the discretion and the disc is the same discretion which congress people have when they exercise their judgment not to be punished at all under the principles of the speech of a clause but there's also a question you had knowledge of the risks but from both sides this court should do what it can do which is to interpret the constitution as the constitution was written and it has not been