John G. Roberts, Jr.: We will hear argument first this morning in Case 19-465, Chiafalo and others versus the State of Washington. Mr. Lessig.
Lawrence Lessig: Mr. Chief Justice, and may it please this Court: The cases -- the question in these cases is straightforward: Do the states have the power to control through 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 does not like the Constitution's design. It asks this Court to read the word "elector" as agent or, maybe better, minion, and it declares that the votes electors cast are not, as the Constitution expressly describes them, their votes, meaning the electors' votes, but instead are the votes of the state. Article II in Washington's hands effectively gives the states the power to cast votes for President in such manner as the legislature thereof may direct. But the actual Article II 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 an unfettered discretion, as Washington puts it. To the contrary, a completely fettered discretion, just fettered by moral and political obligations, not by legal constraint. Washington's alternative to "vest discretion in citizens rather than electors" may be a better plan, at least as 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 is clear in the Constitution's 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.
John G. Roberts, Jr.: Mr. Lessig, do you object to the pledge itself? Assume there's no fine or any other sanction. Is simply requiring a prospective elector to take a pledge okay in your view?
Lawrence Lessig: Absolutely, Your Honor. A pledge, understood the way Ray understood a pledge, having no legal obligation but a moral obligation, is perfectly fine pursuant -- as part of the appointment power of the state.
John G. Roberts, Jr.: Well, then -- so -- so the addition of a sanction makes no difference?
Lawrence Lessig: No, the sanction makes all the difference. So long as there is not a legal sanction, then a pledge is appropriate. It's the same -- the same in the context, Your Honor -- Your Honor, of -- 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 in asking a member to make a pledge. Indeed, states right now ask members to make a pledge as a condition of being a party member.
John G. Roberts, Jr.: 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?
Lawrence Lessig: That's right, because a fine is a legal obligation. It crosses the line because the State has no such power to impose such an obligation through law.
John G. Roberts, Jr.: 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?
Lawrence Lessig: No, Your Honor. It's symbolic requirement. It's, of course, an important moral requirement. It's a moral obligation when you take a pledge. But it can't cross the line and become a legally coercive obligation, consistent with the freedom that the Constitution grants electors to vote by ballot.
John G. Roberts, Jr.: So, by legally coercive, you mean something different than simply coercive? In other words, if you add one dollar, that becomes legally coercive?
Lawrence Lessig: That's right, just as, with the Speech and Debate Clause, if you fine a Congressperson one dollar for his speech or his vote on the floor of Congress, that violates the Speech and Debate Clause. But there's no problem with saying to that Congressperson, to be a member of the Republican party, you must pledge to support the platform of the Republican party.
John G. Roberts, Jr.: Under your view, there would be no way to enforce the popular vote referendum?
Lawrence Lessig: The national popular vote compact, is that what you mean, Your Honor?
John G. Roberts, Jr.: Right. I mean, assuming that gathers enough support and becomes law, there'd be no way to enforce it?
Lawrence Lessig: Well, Your Honor, that obligation requires the states to pick a select slate of electors that fits with the winner of the national popular vote, and that slate of electors then would have the same discretion, legal discretion, that we believe any elector has. But, of course, if there's a national popular vote compact, the number of electors for the winner would be so significant, it would be very hard to imagine any discretion affecting the ultimate result.
John G. Roberts, Jr.: Thank you, counsel. Justice Thomas?
Clarence Thomas: Thank you, Chief Justice. Mr. Lessig, 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 are -- is -- should we ask ourselves whether the Constitution prohibits the State?
Lawrence Lessig: Your Honor, 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 the Appointment Clause. They don't invoke the Tenth Amendment. So that would -- the question is whether the Appointment 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 legal regulation? And we believe, just as the Speech and Debate Clause does, it creates an immunity from being punished for how one votes.
Clarence Thomas: So when -- when you make your -- I'm curious. When you make your federal function argument, is that -- does that depend in part on the fact -- on the -- on the -- your view that the elector has discretion?
Lawrence Lessig: The federal function establishes the discretion, Your Honor. It's exactly the same as in the cases of Hawke and Leser, where the question was a state legislature's -- a legislator's discretion to vote on an Article V amendment. And, of course, a state legislator works for the state. He works for the people of the state, he works subject to the constitution of the state. But what Hawke and Leser establish is that that state legislator is free of the impositions of the state, either through referendum or a constitutional -- the constitution itself, when that legislator votes on an Article V amendment. And that's the same immunity that we think a presidential elector has.
Clarence Thomas: How do we determine what the contours of this federal function -- of the federal function would be?
Lawrence Lessig: I would -- I would look just to the text. The federal function in balloting, as Ray described it, is the function in casting a ballot, as the Twelfth Amendment describes, and then the additional steps the Twelfth Amendment requires, which is to name the President and Vice President, make lists and so forth, sign and certify and send it forward. That's the function which the Constitution gives to electors, distinct from the power to appoint, which Ray also describes.
Clarence Thomas: But does the -- does the Twelfth Amendment mention discretion?
Lawrence Lessig: No. The Twelfth Amendment mentions the votes, and, of course, by requiring that someone make a list of the people that were voted for, it implies that there's more than one person that could be voted for. But, of course, the Twelfth Amendment also doesn't mention the State at all. Yet the way the State conceives of it, the State -- the State is a proctor that stands in the room as the electors cast their votes, looking over their shoulder. But that's nowhere in the Twelfth Amendment, Your Honor. The State doesn't appear in the Twelfth Amendment, except to name where the electors will meet.
Clarence Thomas: You know, can the State remove someone, for example, that's -- I just wonder what limits -- what authority the State actually has here. Can the State remove someone who openly solicits payments for his or her vote?
Lawrence Lessig: You can certainly -- of course, this Court has said in Burroughs and in Fitzgerald v. Green, the state can certainly regulate corruption, and bribery would be corruption. And we believe that it's absolutely clear that the State has that -- the government has that power right now.
Clarence Thomas: So -- but where --
Lawrence Lessig: The question that --
Clarence Thomas: -- so where's the authority? Where does that come from?
Lawrence Lessig: Well, it's interesting, Burroughs itself, Burroughs versus the United States, of course, 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 that the election, in that case the vote by the people, was consistent with law. Either of those could create the authority to avoid corruption, but, of course, corruption, like bribery, is independent of the vote. You don't need to police a vote to be able to police corruption, just as with the Speech and Debate Clause, you can convict a Congressperson of bribery even though the bribery includes the vote that might have occurred.
John G. Roberts, Jr.: Justice Ginsburg?
Ruth Bader Ginsburg: Mr. Lessig, I was surprised with the answer you gave to the Chief about Ray. I would have thought that under your absolute elector discretion view, Ray should have come out differently under your theory.
Lawrence Lessig: No, Your Honor. We think Justice Jackson in Ray 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 that belief into the text of the Constitution. They 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 Ray was whether the State had the power to discriminate on the basis of political affiliation and loyalty when picking electors. And after the Twelfth Amendment, we believe that's perfectly obvious. They have that power to discriminate because that's the function that the -- the Electoral College has come to occupy.
Ruth Bader Ginsburg: It's somewhat hard to understand the concept of something I am pledged, bound to do, I have made a promise to do something, but that promise is unenforceable.
Lawrence Lessig: I understand, Your Honor. And -- and it is -- it 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, a pledge that's been considered of anything beyond a moral obligation. We cited the Kucinich versus Texas Democratic Party case, where Texas requires candidates to pledge to support the candidate in the Democratic Party, and that was upheld exclusively 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 the Speech and Debate Clause to say you can't punish them for their vote. And the pledge is not inconsistent with the Speech and Debate Clause. It's perfectly consistent because a pledge is always and only a moral obligation.
Ruth Bader Ginsburg: Thank you.
John G. Roberts, Jr.: Justice Breyer?
Stephen G. Breyer: Thank you. Good morning. Counsel, a state can appoint people, requirement, that they be permanent residents of the state. That's all right, isn't it?
Lawrence Lessig: Of course.
Stephen G. Breyer: Of course. And then could they say, and you must be a permanent resident at the time that you cast your vote?
Lawrence Lessig: Yes.
Stephen G. Breyer: 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 the vote?
Lawrence Lessig: Yes, we believe they can because --
Stephen G. Breyer: They can, all right.
Lawrence Lessig: -- it's a requirement --
Stephen G. Breyer: What's the 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 doesn't live up to that requirement, just as he didn't live up to the requirement that he be a resident of the state?
Lawrence 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 they can set the day on which the vote is cast. And we believe incidental to the appointment power is to -- the power of the State to assure that there is an elector there who will perform the function, the federal function of balloting. But, once the voting starts, the State disappears. The State does not appear at all, except to name the location of the vote, in the Twelfth Amendment. It certainly doesn't stand there to observe whether someone's voted properly.
Stephen G. Breyer: If, in fact, he changes his residence 10 minutes before he casts his vote, then you could remove him?
Lawrence Lessig: Prior to the --
Stephen G. Breyer: But, if you say he can't -- they can't, the State, when, in fact, he actually casts the vote, but surely a person who casts a vote for Jones instead of Black has, in fact, changed his mind 10 minutes before, and so can you not, in fact, remove him because of that preceding change of mind 10 minutes before?
Lawrence Lessig: No, because the pledge is a pledge made prior to the appointment.
Stephen G. Breyer: There's not a pledge in my hypothetical. It is a requirement that he, in fact, cast his -- 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 10 minutes before. I'm just trying to make it as close as possible to the person who changes his residence 10 minutes before.
Lawrence Lessig: But, again, Your Honor, the Constitution gives the states no power to regulate the vote. They have the power to appoint. And incident to the power to appoint, Ray said 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 regulation that's authorized by Ray has nothing to do with what you've described, which is the regulation of the vote.
John G. Roberts, Jr.: Justice Alito? Justice Alito?
Samuel A. Alito, Jr.: Yes. Mr. Lessig, my question is similar to Justice Breyer's, or at least it follows along the same lines. Suppose an elector is bribed between the time of the popular vote and the time when the electors vote. Can the State remove that elector?
Lawrence Lessig: Your Honor, we believe that prior to the vote, the State's power is -- the incidental power exists to assure that the person who shows up has not engaged in criminal -- is not engaged in a criminal activity. It's difficult to imagine how that plays out, though, because, of course, the claim someone has bribed -- been bribed 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 framers expressly considered this problem. George -- George Mason expressly said a reason not to have electors is that they could be bribed. But what the framers saw is that there were two risks. There was the risk of elector bribery, but there was also the risk of cabal and corruption, as Madison put it --
Samuel A. Alito, Jr.: Well, I thought your --
Lawrence Lessig: -- if you give --
Samuel A. Alito, Jr.: -- argument was that -- your argument must be either that the electors cannot be removed by the State -- the State says that at least some removal power goes along with the appointment power. So I -- I think your argument has to be they can't be removed, or there are at least some circumstances in which they can be removed. And if there are some circumstances in which they can be removed, such as when the elector has been bribed, why would the violation of a pledge not be one of those circumstances?
Lawrence Lessig: Your Honor, we -- we have said the bribe is different from a pledge because, of course, the bribe is proven differently from -- separately from how one votes. So we've recognized that there's a capacity to regulate bribery. But what I -- I -- your question is perfectly framed, because I do want to assert that there's no power to remove prior to the vote. The power that comes from, for example, 3 U.S.C. 4, which Congress gives the states the power to fill vacancies, is the power to fill a vacancy once the vacancy occurs. It's not the power to create a vacancy. And -- and that's the structure that the Constitution establishes as well.
Samuel A. Alito, Jr.: So the State cannot create a vacancy by removing an elector who has been bribed?
Lawrence Lessig: Yes, unless the bribery statute makes as a -- a penalty a removal from office and there's a conviction prior to the actual time at which the vote has been taken, but that's, of course --
Samuel A. Alito, Jr.: Let me ask you one other question if I can. Those who disagree with your argument say that it would lead to chaos, that in -- 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, there would be -- the rational response of the losing political party or elements within the losing political party would to 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. Do you deny that that is a -- a good possibility if your argument prevails?
Lawrence Lessig: We deny it's a good possibility. We don't deny it's a possibility. And 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. But look historically at the number of times that could have mattered. In fact, in the history of electors, there has been one elector out of the 23,507 votes cast who have switched parties against the majority party in a way that it could have mattered. That was the very first time this happened, Samuel Miles in 1796.
John G. Roberts, Jr.: Justice Sotomayor?
Lawrence Lessig: In the ordinary close election --
John G. Roberts, Jr.: Justice Sotomayor?
Sonia Sotomayor: Counsel, you compare in your brief the Electoral College to a jury, arguing that they are structurally similar under the Constitution. You can't remove a juror 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 during the trial, not to research the case with the parties, to tell the truth during voir dire. Yet, if a juror is selected and violates one of those pledges, say the juror talks about the case with the other jury members, the judge is empowered -- with others than the jury members, the judge is empowered to remove that juror. So why isn't a presidential elector subject to being removed in the same way? He has made a particular pledge, different than remaining impartial, 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 does it and a judge can remove him?
Lawrence Lessig: Well, Your Honor, you've identified the core immunity that a juror has, and that is the immunity in the vote to convict or not. And we agree that is an immunity that cannot be regulated, can't be punished. It can't be fined for a vote improper according to the court or to the State, though there are other obligations, you're right, that you can be held to account for. We think that's perfectly parallel with the presidential elector. The presidential elector has an immunity in his or her vote. But, of course, sitting in the elector room, he can't cause a disturbance, he can't threaten somebody with a weapon, he can't engage in any number of criminal activities that might, of course, interfere with the opportunity to perform the duty. There's no general immunity. There's a particular immunity because the immunity to vote is an immunity from penalty for vote, just as the Speech and Debate Clause cases have made clear.
Sonia Sotomayor: Now you rely a lot on history in your argument, but doesn't McPherson undermine your position very directly, just like Ray does in some extent? In those cases, the -- in -- in those cases, the Court made clear that whatever the framers expected -- and, here, you make a good argument that some of the framers originally expected electors to have discretion -- that historical practice since the founding offered a practical interpretation of the Constitution. That's what Ray said. And McPherson said experience soon demonstrated that the electors were chosen simply to register the will of the appointing State. Don't -- doesn't --
Lawrence Lessig: Your Honor --
Sonia Sotomayor: -- that same principle undermine whatever you think some of the framers expected that historical --
Lawrence Lessig: Your Honor --
Sonia Sotomayor: -- practice, at least since the Twelfth Amendment, has shown that states have imposed not just pledges but have imposed fines and some removal of electors who are faithless?
Lawrence Lessig: Your Honor, first, no state has ever, prior to 2016, imposed a fine to remove an elector. But number two, our argument has nothing to do with expectations. It is the State's argument that hangs on expectations. What we say is that the Constitution, as McPherson says, should be read not according to modern-day expectations but according to the words, the ordinary expected meaning of the words the framers used in the Constitution. So, in McPherson --
John G. Roberts, Jr.: Justice Kagan?
Lawrence Lessig: -- the question --
Elena Kagan: Mr. Lessig, so let me ask you about those words. As I understand it, most of your argument depends on a particular reading of the terms "vote" and "ballot" and "elector," and, of course, you know, usually we think of those terms as involving some choice but not necessarily. People are electors, at least formally. People vote, at least 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 himself to -- to vote because another person is voting another way. So why do these terms necessarily involve choice in the way you suggest?
Lawrence Lessig: Well, Your Honor, we believe, as Chief Justice Roberts has described, that the best way to understand these words, the best dictionary is the Constitution itself. The Constitution speaks of elector in two contexts. Article I speaks of what Justice Thomas has referred to as congressional electors, unique voters. And we believe the freedom of congressional electors is exactly the freedom of presidential electors. And we understand the authority of this Court to establish that the office, as Justice Kennedy put it in his opinion in Thornton, the office of the elector, the elector there meaning 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. Now, of course, they could have said, we mean by elector in Article I someone who has freedom and discretion, but, by Article II, we mean what will become the Soviet Union conception of elector. That would have been possible. We're not saying it's impossible to imagine this. We're saying the ordinary expected meaning of these words would have supported the discretion that absolutely the framers expected electors would have, and that --
Elena Kagan: If that's right, Mr. --
Lawrence Lessig: -- these were in --
Elena Kagan: -- if that's right, Mr. Lessig, if -- if -- if your reading is -- is very deeply contextual, then shouldn't we look to what happened in the very first elections under the Constitution, where, you know, immediately, right away, electors associated themselves with a political party, pledged their votes ahead of time, and -- and it's that practice that has continued for over 200 years? So, if your reading isn't demanded by dictionary but is instead demanded by context and history, doesn't the context and history suggest the opposite?
Lawrence Lessig: Your Honor, we believe the context and history supports the idea, absolutely, that electors were to pledge themselves. We're not saying 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 elector survives. So, yes, look at 1796, where the first so-called faithless elector, Sam Miles, switches sides, which, of course, is noticed and objected to. And, indeed, in 1800, that election also was complicated by the failure of electors to do what they were expected to do. Gallatin noted that to Jefferson and said to Jefferson, we should eliminate electors. And Jefferson said, yes, let's have a --
John G. Roberts, Jr.: Thank you --
Lawrence Lessig: -- amendment --
John G. Roberts, Jr.: -- counsel. Justice Gore -- Justice Gorsuch?
Neil Gorsuch: Counsel, could a state, for example, ask an elector to make a sworn statement as to his present intention to vote for a particular candidate, make the pledge an oath?
Lawrence Lessig: Yes.
Neil Gorsuch: And could a state later prosecute that elector for perjury if that statement under oath -- if there's evidence that that was a false statement?
Lawrence Lessig: In principle, absolutely, Your Honor. We think, in practice, that would be just like with a Judge making a promise to a Senate committee upon confirmation -- prior to a confirmation, it would be incredibly difficult to imagine enforcing in a way that wouldn't be just retaliatory against a particular elector.
Neil Gorsuch: And could a state say that we'll pay your expenses and give you a per diem for your service, but only if you carry out your promise to vote in a particular way that you pledged initially?
Lawrence Lessig: No. That's what Washington's new law, in fact, does. That is, in effect, a penalty as well.
Neil Gorsuch: Why -- why couldn't it do that if it could do the other things?
Lawrence Lessig: Well, again, Your Honor, the difference is between a legal consequence or a legal penalty based on your judgment, your vote, a federal function of balloting, which is free of state control, and the other incidental powers relative to appointment. And so, in appointment, I want to make sure you're an honest person --
Neil Gorsuch: I'm sorry for interrupting, but I'm not sure -- I'm not sure I understand where -- where you're going, so I just want to cut -- cut to it if we can. So a state -- and my -- my last hypothetical is just simply saying, we'll pay your -- your -- your lunch, your -- your -- your travel and your per diem if -- if you conform to your pledge under oath. And -- and -- and that's not permissible, but it is permissible to -- to convict a -- an elector for perjury? I'm just not --
Lawrence Lessig: Well, that --
Neil Gorsuch: -- certain about that.
Lawrence Lessig: Well, that's right, Your Honor, because perjury involves a false statement at the time the pledge is made. In our case, our electors absolutely intended to pledge -- to vote for Hillary Clinton if Hillary Clinton won the election.
Neil Gorsuch: I'm -- I'm not asking about your client. I'm -- I'm -- just stick to the hypothetical, counsel, please.
Lawrence Lessig: Okay. But the hypothetical imagines that someone has committed a criminal act. Okay, 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 their vote or not based on their vote is a difference driven by the substance of the constitutional discretion that electors are given, the -- the federal function in balloting, the right to vote.
Neil Gorsuch: And -- and with respect to the perjury example, could a state remove that individual and -- and not count his vote?
Lawrence Lessig: Your Honor, the perjury example does not allow them to remove the individual, no. And what we know in the context of other areas where votes have been tainted, for example, a bribery conviction which involved a vote in Congress, is the vote is not -- not counted. That's just a consequence of the separation between the prosecution and the --
Neil Gorsuch: Well, I'm sorry, I thought you indicated to earlier questions that you thought it was fine for a bribed elector to be removed from office prior to voting.
Lawrence Lessig: Yeah, I said that if you convict and convict the person prior to the actual voting, then you could remove them if it was --
Neil Gorsuch: Okay. The same -- same would be true of perjury, I suppose, then too? No?
Lawrence Lessig: If you could structure the statute and -- and succeed in the conviction, but, of course, the perjury requires at the time a false statement.
John G. Roberts, Jr.: Thank you, counsel. Justice Kavanaugh?
Brett M. Kavanaugh: Thank you, Mr. Chief Justice. Good morning, Mr. Lessig. I want to follow up on Justice Alito's line of questioning and what I might call the avoid chaos principle of judging, which suggests that if it's a close call or a tiebreaker, that we shouldn't facilitate or 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 to say about that?
Lawrence Lessig: It's a good thing to consider, Your Honor, and what we've said is yes, on the one side, you might worry that there's a increased risk of "chaos" if electors have the discretion we believe they've always had. We suggest that the likelihood of that -- that is tiny given it requires electors who are the loyal of the loyal to band together in dozens or, you know, three dozen in the last election and flip sides. And, of course, the likelihood of that is extremely small. But what we've also said is there's risk on both sides. The Twentieth 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 ban 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 that could flip the result, also unexpected, also potentially creating chaos. So there's chaos both ways. And the number of times we've had candidates die is actually twice as frequently as we've had candidates -- as we've had electors switch their votes and vote for somebody from the other side. So in the face of --
Brett M. Kavanaugh: Okay. Let me -- can I -- I'm sorry to interrupt. I want to --
Lawrence Lessig: Sure.
Brett M. Kavanaugh: -- get to another question. You set this up appropriately as, in essence, the states versus the electors in some sense, but isn't it also appropriate to think of this as the voters versus the electors and that your position would, in essence, potentially disenfranchise voters in the state?
Lawrence Lessig: Your Honor, of course, in our case, the action of the electors was to further enfranchise the voters in the case -- in this case.
Brett M. Kavanaugh: As a general theory --
Lawrence Lessig: They are trying --
Brett M. Kavanaugh: -- as a general theory -- I'm sorry to interrupt -- wouldn't your position potentially lead to that?
Lawrence Lessig: It's potentially true. That's -- that's right, Your Honor.
Brett M. Kavanaugh: Okay. And then the last question is -- the question here is not 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 Tenth Amendment, as Justice -- or the -- the states' authority, preexisting authority, as Justice Thomas was suggesting, come in?
Lawrence Lessig: Well, Your Honor, first, of course, the State doesn't invoke the Tenth Amendment, but, if it did, it would fail because, whereas, in the Thornton case, for example, Justice Thomas could point to traditions that allowed the states to exercise the power that they wanted to exercise there, there is no tradition in America, maybe in the Soviet Union, as Justice Kagan -- Kagan suggests, 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, therefore --
John G. Roberts, Jr.: Thank you, counsel.
Lawrence Lessig: -- there's no Tenth Amendment power either.
John G. Roberts, Jr.: Counsel, thank you. You can take a minute to wrap up if you'd like.
Lawrence Lessig: Thank you, Your Honor. The question here has got to both 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 it is also the question whether the electors as electors, the same sort of electors that Article I creates, have a discretion. And the discretion is the same discretion which Congresspeople have when they exercise their judgment not to be punished at all under the principles of the Speech and Debate Clause. But there's also a question we acknowledge of the risks, but facing risks on 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 amended. Thank you.
John G. Roberts, Jr.: Thank you, counsel. General Purcell.
Noah Purcell: Thank you, Mr. Chief Justice, and may it please the Court: The Constitution gives states the power to appoint electors. That power has always included the power to set conditions of appointment, such as requiring that an elector live in the state or show up for the Electoral College meeting. One condition that states are clearly allowed to impose is that electors promise to support the presidential candidate preferred by the state's voters. States have been choosing electors on that basis since the founding. This Court approved that condition in Ray. And the other side admits that states can impose this condition. The only dispute here is whether states can enforce this condition or any other valid condition of appointment. Petitioners say no, or at least that's what they said in their brief. They say that states cannot remove or sanction electors after appointment for any reason, even if the elector is being bribed or blackmailed, even if they lied about their eligibility to serve in the first place, or even if they refuse to show up for the meeting of the Electoral College. That is not the law, as Petitioners now seem to acknowledge. Constitutional text, original understanding, historical practice, and this Court's precedent all demonstrate that states can enforce valid conditions of appointment like those here. Now I'd like to start by discussing original understanding because Petitioners want you to believe that this case presents a conflict between our country's long-standing practices and the framers' intent. But two stubborn facts refute their claim. First, the framers and their contemporaries clearly understood that states could remove or fine electors after appointment. From even before the Twelfth Amendment, many states had laws removing or fining electors for violating the conditions of their appointment, repudiating a central premise of Petitioners' claim. And, second, as this Court recognized in Ray and in McPherson, from the very first presidential election, states have been choosing electors specifically because they had promised to support a particular presidential candidate. And this contradicts Petitioners' claim that the framers viewed the exercise of discretion as central to the elector role, and it shows that Petitioners' quarrel is not just with our long-standing practice; it is with the framers themselves. Accepting their position would mean concluding that the framers misunderstood the role they had created.
John G. Roberts, Jr.: General --
Noah Purcell: Now, if you're --
John G. Roberts, Jr.: -- could the legislature appoint whomever they want to be an elector?
Noah Purcell: Your Honor, there are certainly some limits on -- on the discretion. Other constitutional provisions, such as the Equal Protection Clause, impose limits, of course. But, in general, states have exclusive authority, as this Court has said, to -- to appoint electors and to set conditions of appointment. And -- and, certainly --
John G. Roberts, Jr.: Well, let's say after -- they don't appoint electors in any way before the -- the national vote, and then they select the electors that they would like after that vote. Is that all right?
Noah Purcell: I don't think that's all right, Your Honor. I would a need a few more facts to know for certain. But the -- the risk there is that, once the State has given to the people the right to vote for President, that right is fundamental, as this Court has recognized. So the state legislature cannot override the will of the people by appointing electors to do something different after the fact. So -- so that would not be acceptable. But -- but the State does have the authority to enforce valid conditions of appointment, such as just requiring that an elector show up for the meeting of the Electoral College. And on the other side's view, even that is unacceptable. And as you heard today -- I'm somewhat confused by exactly what their position is on this -- but it seems they're saying you cannot remove someone even if you know they accepted a bribe unless you can somehow move through the criminal process before the electors meet. And that's just absurd. It's -- it's completely contrary to the historical record, and it leads to a dangerous consequence, Your Honor, that there's a huge incentive, under the other side's view, for -- for those who want to meddle in our presidential elections, whether it be a foreign power or just a wealthy individual, to attempt to bribe or blackmail electors. And it's quite easy to imagine a foreign government hacking into the computer of a few dozen electors to find embarrassing information about them and try to get them to change their votes. And if there's nothing --
John G. Roberts, Jr.: Say the State --
Noah Purcell: -- the State can do about that --
John G. Roberts, Jr.: -- let's say the State law for electors say that they have to vote for the slate of the party that sponsors them and that they will be certified as electors, unless the circumstances after the election have changed to the extent that the legislature thinks the electors ought to be changed. In other words, not unbridled discretion with the legislature, but a condition known to the electors before they were selected. Would that be all right?
Noah Purcell: Mr. Chief Justice, I think that raises the same challenge as your earlier hypothetical, that while the legislature in the first instance has the power to set, you know, any condition that complies with the Constitution, once the legislature has given to the public the power to vote in a presidential election, they cannot override that vote, consistent with the Equal Protection Clause and this Court's cases. So -- so, you know, your hypothetical, I think, pushed up against that principle. And it's not just what commitment are you asking the electors to make but what have you told the public about their role. And, of course, under the other side's theory, the public role we currently think of as the presidential election process, the campaigns, the debates, the rallies, the voting, is all irrelevant and always has been. It's purely advisory. And so --
John G. Roberts, Jr.: So that all they have to do is tell the public that when it comes to electors, we're going to follow Mr. Lessig's view?
Noah Purcell: I'm sorry, Mr. Chief Justice, I don't understand that. I don't understand the question. The --
John G. Roberts, Jr.: Well, the question is you're -- you're suggesting that the critical factor is whether the State's conduct is based on a condition prior to the selection of electors, and if the electors know that they have the discretion or that the State -- excuse me, that the State has the discretion to replace them and the people know that, shouldn't that be enough?
Noah Purcell: No, Mr. Chief Justice. My -- my -- my -- the critical point is that if the condition is constitutional, then the condition can be enforced by removal or by sanction, just as it has been since before 1800. So, if the condition is you have to show up for the meeting of the Electoral College, the State can enforce that. If the condition is you have to pledge to vote for the candidate chosen by the state's voters, we know that's a valid condition, the State can enforce it. So that's the crucial --
John G. Roberts, Jr.: Thank you, counsel. Justice Thomas?
Clarence Thomas: Yes, thank you, Chief Justice. General Purcell, just to -- to clarify, could you give us precisely some of the limitations on the restrictions that the State can impose on elect -- on the electors? I understand you can require them to show up for the vote. I understand that the -- you have the limit of what's constitutional. But, beyond that, what -- what -- what else limits you?
Noah Purcell: Well, I think those are meaningful limits, Justice Thomas, and those are the limits -- this Court has said that the power of states over appointment is exclusive, is plenary. Obviously, as I said, the Equal Protection Clause imposes limits. Other constitutional provisions, like the Presidential Qualifications Clause, impose limits, such that states can't, for example, restrict electors' choice of who they can vote for in a way that would violate the Presidential Qualifications Clause. But, other than that, the states have plenary authority to appoint electors and to set valid conditions. And if -- if the condition is valid, if the condition is constitutional, then the condition can be enforced. That's -- that's our position.
Clarence Thomas: Yeah. Well, I guess that's why we're here, but one other question. The -- I'm interested in, you know, the -- what you think and how we -- how you would define the scope of the federal function concept.
Noah Purcell: Your Honor, I think there's three crucial problems with the other side's federal function argument. The first is that it's just not even supported by the cases they cite. Burroughs and Ray mention federal function in the sense that there is a federal interest, obviously, in the conduct of presidential elections, but they don't say or imply in any way that the Supremacy Clause restricts state authority over electors. And -- and then second, the -- the whole point of the federal function doctrine is to prevent state interference with actions of the federal government and with actions of federal officers. And in this context, the federal government does not elect the President. And federal -- and electors are not federal officers. And the third point, Your Honor, is a historical one, that if they were right about this federal function idea, then states never ever would have been able to remove or sanction electors for any reason. And -- and yet we see statutes from even before 1800 in many states that provided for exactly that, for removal or sanction of electors. And under the other side's theory, those statutes have always been unconstitutional. And under the other side's theory, the State can't remove or sanction an elector for any reason as far as I can tell from their -- their theory. Even if we -- even if the State knows the person has taken a bribe, the State cannot remove or replace them. Even if the State knows that the person is not going to show up for the meeting of the Electoral College, the State cannot remove or replace them, even though states have been doing that, again, since before 1800. So -- so I just don't understand how the other side's theory is at all consistent with the original understanding if it's not -- it's just not the original understanding. It's an academic theory that has never been put into practice.
John G. Roberts, Jr.: Thank you, counsel. Justice Ginsburg.
Ruth Bader Ginsburg: What do you make of the fact that Congress has never failed to count an anomalous electoral vote, not once? It has always accepted the anomalous vote.
Noah Purcell: Justice Ginsburg, I think that highlights Congress's view that it should defer to states about the votes that they certify to Congress to count. Of course, in every example that the other side's given, the State had certified those votes as the State's votes. But, if you look at 2016, Congress also counted the votes from Colorado and from Minnesota, where the state replaced faithless electors with electors who promised to vote as pledged and did vote as pledged, and Congress counted those votes as well. So what you see in the history is Congress deferring to the State's designation of which electors are validly appointed by the State.
Ruth Bader Ginsburg: Thank you.
John G. Roberts, Jr.: Justice Breyer?
Stephen G. Breyer: Thank you. Counsel, I'd like you to assume, whether this is Mr. Lessig's argument or not, assume this is my argument for present purposes. The only thing a state cannot do is to punish the elector for the way he actually casts his vote. As far as bribery laws are concerned, there are plenty. As far as gratuities, all kinds of things, what he's doing before, he'd accepted a bribe or promised to before. The only thing is the actual casting of the vote. Now there, as to that, what would happen -- and there have been quite a few faithless electors. For the most part, it hasn't mattered. Where it really might matter is if somebody died or some catastrophe happened or worse. There, it might matter. And in the one case, Congress refused to count votes which were cast for the person who was promised, Horace Greeley, and so there is a mechanism in Congress to protect catastrophe; namely, they count which ballots they choose to count. The alternative is your alternative, which is the State tries to control it. Which is the greater danger, which is the greater safeguard: to have a Congress that will decide what to do with the faithless electoral vote or to have the State possibly, who knows what they could pass as a requirement? Now what is your opinion about that?
Noah Purcell: Well, Justice Breyer, there's a lot there and I want to start by addressing your last question about what can Congress do. Congress cannot solve this problem because Congress cannot appoint an elector for a state. So if -- if -- even if Congress could reject a ballot, for example, if it found out -- if it knew that the elector had been bribed, the State has lost that electoral vote and cannot get it back. The State cannot -- the Congress cannot appoint a new elector for the State. And just rejecting that ballot might alter the outcome of the presidential election, rejecting several ballots might. So the idea that Congress can solve this after the fact is just -- it's not true and it -- and it -- it -- it -- it ignores the constitutional delegation of power to the states. Turning to your other points, I mean, there's just no -- I want to -- an example I think helps illustrate why there's really no constitutional difference between failing to show up and failing to keep your promise. Imagine two electors who both do not like the nominee eventually -- who eventually wins their party's nomination and is -- is -- and wins the general election. One says, I'm not going to show up for the Electoral College meeting because I don't like this person. The other says, I'm going to show up and I'm going to vote for someone else. Both have violated valid conditions of their appointment. Both can be removed and replaced by the State. And there's no constitutional problem with that. There's no --
Stephen G. Breyer: But there is a difference between the two. And in the one case, your State is punishing the person for what he does before voting. In the other case, he is punishing him for the way he casts his vote.
Noah Purcell: Well, two points.
Stephen G. Breyer: And that is what I think the -- the other side says is the one thing the State cannot do.
Noah Purcell: First of all, Justice Breyer, we -- Washington's revised law now removes the person before they can vote, just as Colorado's law does. Washington's prior law did impose a fine for breaking your pledge, for violating the condition of appointment. And -- and there's nothing wrong with that. If you look historically from even before 1800, states had fines for violating conditions of appointment. And so -- and -- and it's also quite common for appointed officials at the state and federal level to potentially face consequences for -- for voting in violation of a promise. So, for example, the United States ambassador to the U.N. certainly has a vote in the U.N. General Assembly, but if -- if they vote differently from how the President directs them, the President, of course, can sanction them or remove them. So -- so it's quite common with appointed officials that they can face consequences for voting differently than they've promised. And -- and -- and that's what this is just a straightforward example of.
Stephen G. Breyer: Thank you very much.
John G. Roberts, Jr.: Justice Alito?
Samuel A. Alito, Jr.: Thank you. Counsel, does the Constitution impose any limits on a state's power to attach conditions to the appointment of an elector?
Noah Purcell: Some, Justice Alito. The -- the ones I was referencing earlier. Obviously, the State cannot impose conditions that themselves would be unconstitutional, such as race-based conditions, for example.
Samuel A. Alito, Jr.: Okay.
Noah Purcell: But our big -- sorry, go ahead.
Samuel A. Alito, Jr.: What else?
Noah Purcell: Well, as -- as I said before, the State can't impose conditions that would violate the Presidential Qualifications Clause. You know, other constitutional limitations might come into play if -- if the -- you know, I mean, it's hard to imagine what -- but -- but -- but our basic point is that if a condition is constitutional, and we know this condition is, then that condition can be enforced. That's the key question, is -- is the condition itself constitutional.
Samuel A. Alito, Jr.: Could a state require electors to cast their votes for the candidate chosen in a resolution passed by the state legislature after the popular vote is cast?
Noah Purcell: No, Your Honor. That's -- that's what I was trying to say in answer to the Chief Justice's question as well. That would violate the public's fundamental right to vote, once they have been granted that right by the State, and -- and violate the fundamental -- their fundamental right to vote.
Samuel A. Alito, Jr.: Well, I didn't quite understand that answer. Is a state obligated to choose electors through popular vote?
Noah Purcell: No, Your Honor. As -- as -- at the beginning, in the early days, the legislature can choose electors directly if it wants. And in -- in that circumstance, the legislature can impose and enforce a pledge. But once the elector -- sorry, once the legislature has given the power to -- to vote to the public, the public now has a fundamental right to vote and to have their votes counted equally and -- as this Court has said in a number of cases. And so -- and so the -- the legislature can't then override that vote after the fact.
Samuel A. Alito, Jr.: Why -- why is that so? Could Washington say we're going to choose five wise people -- I -- I'm sorry, 12 wise people to be our electors and we are going to allow the -- the public to advise them through a -- a -- a popular vote, to give them the sense of what the people of Washington want? Would that be unconstitutional?
Noah Purcell: If the legislature made clear that the public vote was entirely advisory, then -- then -- then, you know, I think that presents a tough question, but I think they probably could do that. You know, the -- the key compromise of the Constitution as to electors was to leave it to states to decide exactly what authority they would have. States were free to decide to leave electors with discretion, as some states did then and as some states still do today. But states were also free to choose electors on the basis of who they had pledged to support, as -- as many states did from the beginning, and as -- as the majority --
Samuel A. Alito, Jr.: What -- what is the difference --
Noah Purcell: -- of states do now.
Samuel A. Alito, Jr.: -- between -- what is the difference between that setup and the setup that Mr. Lessig says is required?
Noah Purcell: Well, Your Honor, the -- the -- the crucial difference is that Lessig is saying there's nothing the states can do to remove or -- or sanction electors after appointment for any reason, and we are saying that we know from history and we know from Ray, and the other side even admits, that this condition of -- of pledging to support the candidate preferred by the State's voters is a conditional condition. And that condition can be enforced just like any other constitutional condition. That's the key -- that's our key point. And states have been removing and replacing electors for violating conditions of appointment since before 1800. States have been choosing electors specifically because of who they pledge to support since the very beginning. If the other side were right about how electors were supposed to operate, what you would have seen historically is electors trying to convince legislatures and the public to choose them because of their great wisdom and knowledge. They would have been saying: Choose me. I will -- I will decide well on your behalf. And that is never ever how American presidential elections have operated. Electors were chosen because of the candidate they had promised to support. So to adopt their view would be to radically change, to radically change, how American presidential elections have always operated.
John G. Roberts, Jr.: Justice Sotomayor?
Sonia Sotomayor: Counsel, I'm curious about your views on the Tenth Amendment. The other side points out that you never raised it. Two of my colleagues have referred to it. But am I assuming correctly that Thornton sort of puts a quash on relying on the Tenth Amendment in a situation like this? This is a new procedure that Congress intended, so the states can't say that they expected or reserved a right in something they never knew they had?
Noah Purcell: Well, Your Honor, we didn't explicitly argue the Tenth Amendment, but we don't -- we don't think we need to rely on it, and we -- we support our colleagues in Colorado in making that argument. We think that the -- the -- the fundamental premise of the Constitution is that, you know, states have -- the federal government is one of the enumerated powers; states have powers unless they're taken away. Nothing in the Constitution restricts state authority to impose conditions on appointment of electors and to enforce them. And even if that weren't the case, the text itself gives states power to appoint electors. That phrase -- this Court has repeatedly said the appointment power -- inherent in that power is the removal of power, unless there's contrary language. And the original understanding has always been that the appointment power of electors included removal power, as you see in the early statutes. So -- so, you know, I don't -- I don't think the Court needs to rely on the Tenth Amendment to resolve this case. I think -- but -- but -- but I think it -- certainly, the background principle that states have powers unless they're limited by the federal Constitution is relevant and -- and supports our side.
Sonia Sotomayor: Now you rely on a default rule in your brief, which you haven't mentioned yet, which is the power to appoint includes the power to remove. But all of the examples that you rely on are vertical appointments, when an official within one branch of government appoints a subordinate in the same branch for an indefinite period, and the idea is, I -- if I appoint you, I should be able to get rid of you if, in your service to me, you are doing something wrong. But, here, the State is appointing a voter to do something that most people think of as requiring judgment and -- and -- judgment and some measure of freedom, which is the power to cast a ballot. The other side, in its brief, points out that there were other words that would have connoted -- that would have connoted something different than elector, like a delegate. You appoint a delegate to cast a vote for you. But that's not what Congress chose. In appointing an elector, an elector has a sense of someone who's going to vote. So how -- how can you say that that tradition within the executive branch of the power to remove is controlling here?
Noah Purcell: Justice Sotomayor -- Sotomayor, there's really three fundamental problems with the electors' argument on that front. There's a -- there's a textual problem, a historical problem, and a --
Sonia Sotomayor: Well, I don't think it's their problem. I think it's your problem.
Noah Purcell: Well, like I said, they -- none -- none of the cases say anything like what they're -- they have drawn this vertical appointment language. Well, first of all, it first appears in their reply brief. In their opening brief, they said that that rule -- well, they didn't mention the default rule at all. They suggested it was just the executive branch. And then, in our response, we pointed out, well, actually, there's a bunch of cases from the judicial branch applying this rule. And now they've invented this kind of vertical rule. But that rule appears nowhere in the Court's cases. The Court has said, in context after context, that the removal power is "inherent in." It just comes along with the appointment power. You said it in constitutional cases, statutory cases, high-level officials, low-level officials, judicial branch, executive branch. And even if you hadn't said that over and over again, if you look at the history, here, the history shows that states could remove electors from the very beginning, again, from -- the statutes from before 1800. And -- and -- and so -- and the other side's theory on this front also is that -- is that once the State appoints the elector, they somehow become part of another branch of government or -- or something like that. But -- but the Court has rejected that idea. The Court has said that these -- these electors are not federal agents or officials. The Court said that very clearly in Fitzgerald over a century ago. So -- so their -- their -- their new-found theory about so-called horizontal appointments, it's just not supported by text, by history, or by precedent. And -- and -- and it's kind of a side show, frankly. It's just not -- it's not -- it doesn't help answer the question here. The Court has never drawn that distinction.
Sonia Sotomayor: But there is a --
John G. Roberts, Jr.: Thank you, counsel. Justice Kagan?
Elena Kagan: General, what do you view as your best textual argument?
Noah Purcell: Well, Your Honor, we think the best textual argument is just that nothing in the Constitution limits state authority over how to appoint electors or what -- or whether states can impose conditions and enforce them. We think there's a direct grant of authority in the appointment power, as -- as this Court has repeatedly recognized. And we think that, certainly, by the time of the Twelfth Amendment, everyone understood that electors were being chosen in the states because they had promised to support particular candidates. So the idea that when the -- when the framers of that amendment used the word "elector," they inherently meant someone who can exercise discretion is just -- it just doesn't make any sense. That is not how the term was being applied in any of the states. That was not how they understood it. And, in fact, the Framers of the Twelfth Amendment quite clearly intended to -- to -- to embrace the system as it had developed, where electors were pledging their votes and states were choosing them on that basis. This Court said that in Ray very clearly. That was a key point of the Twelfth Amendment. So --
Elena Kagan: If I -- if I understand you correctly, you're really saying you don't have an affirmative textual argument. What your -- what your argument is, is that the Constitution doesn't say and in -- in -- in that -- if the Constitution doesn't say, we should presume that states were meant to decide?
Noah Purcell: Well, let me be more precise, Justice Kagan. I don't -- I think we -- that -- that -- that starting principle is right, that we -- that it should be the other side's burden to show that we can't do this. But -- but the power to appoint does include the power to remove, and so there is a textual grant. And what I was getting at at the end there was just that the central premise of the other side's argument is that these words, "elector" -- especially "elector" -- require the exercise of discretion. And that's not true as a textual matter, and it's absolutely not true as a historical matter. And so that's, I guess, the -- the point that I was trying to get at there, was that it's their argument, really, that asks you to ignore the original understanding and early practice, and they're asking you to do that based on words that -- meanings of these words that just are not how the framers and their contemporaries understood them.
Elena Kagan: Isn't the idea that the power to appoint includes the power to remove highly contextual, that it depends on a certain understanding of control, which is exactly the question here? It does -- you're sort of assuming the conclusion by saying that.
Noah Purcell: I disagree, Your Honor. The Court has said repeatedly that the power to appoint includes the power to remove, unless there is text limiting that power. And the power -- and that limitations on the power, the Court has said, will not be implied. And, again, the Court has said that in many, many, many contexts. And really the only time the Court has found otherwise is where there was explicit text limiting the removal power. And so I don't -- you know, I don't want to -- I don't want to overly emphasize this point. I think it's at least as important that when you look at the early understanding, the framers and their contemporaries clearly understood that states could remove and replace electors, and they also clearly understood that states could choose electors because of who they had pledged to support. So, you know, I think -- I think it's the other side that really is asking you to rip these words out of context and place vastly more weight on them, on -- on these kind of dictionary definitions untethered from how the framers actually applied them. You know, they're -- they're -- they're asking you to adopt kind of one possible reading that the framers could have had of these terms, but it's a possible reading that is just refuted by what the framers and their contemporaries actually did. And it also, Your -- Your Honor, Justice Kagan, it leads to the absurd consequence that -- that everything that we think of as the presidential election process currently is really just advisory. It is all largely irrelevant. It just -- it just -- you know, all that matters is who the electors choose. And on the other side's telling, they can choose whoever they want for whatever reason they want and they can't be removed even if they're taking a bribe or even if they're being blackmailed or even if they say in advance, I'm not going to show up for the meeting. It -- it just -- again, it would radically change how American presidential elections have always worked in our country.
Elena Kagan: Thank you, General.
John G. Roberts, Jr.: Justice -- Justice Gorsuch?
Neil Gorsuch: Counsel, I understand your argument is that a thousand dollar fine doesn't diminish or negate the fact that the elector here is voting and has in some real sense a right to vote and it -- it's being honored. But what about the new law that both Washington's adopted and I know Colorado has too, the Uniform Faithful Presidential Electors Act, and I know you're going to tell me it's not before us, but put that aside for the moment if you will for purposes of this question, that as I understand it, and you can correct me, that if a -- a -- an elector renders a faithless vote, that automatically removes him from office as a matter of law, and, in fact, votes aren't even counted until the Secretary of State has collected the requisite number of ballots, marked for the right people, based on preexisting pledges. Is that consistent with the Constitution's prescribed order of appointment, meaning in voting, it seems like the voting comes first and then the appointment under the uniform law, and is it also consistent with the federal Electoral Count Act? If -- if -- if you could just speak to me about those questions, I'd be grateful.
Noah Purcell: Certainly, Justice Gorsuch. It -- it is consistent because the way that the laws work is that the elector who seeks to violate the conditions of their appointment by casting a faithless ballot is removed before they can vote. They're not removed before they're appointed. They are initially appointed. But then they're removed when they violate the condition. And -- and then they're replaced and another elector is appointed who will follow the law that they promised to -- to follow and -- and keep their promise and vote as directed. So the order is -- is -- is proper. It's -- it's appointment. It -- it -- and, you know, depending when in the process the elector announces their intentions, they're removed and they're replaced by someone else who votes in accordance with state law. And to come back to my example from earlier if I can, there's really no meaningful difference between the person who says, I don't like our nominee, I'm not showing up for the meeting, and one who says, I don't like our nominee, I'm showing up for the meeting and I'm voting for somebody else. The State -- both -- both people have violated valid conditions of appointment, both people can be removed by the State and replaced by someone else. The other side's position is neither of those people can be replaced. And -- and -- and even the person who says, I'm not showing up because, you know, somebody gave me two million dollars to not show up because that might affect the outcome of the election, the other side says that person can't be replaced. That just makes absolutely no sense historically, textually, or practically.
Neil Gorsuch: Thank you.
John G. Roberts, Jr.: Justice Kavanaugh?
Brett M. Kavanaugh: Thank you, Chief Justice. Good morning, General Purcell. If you're right about the electors not having this kind of discretion from the Constitution, I wanted to get your take on a provision of Article II, Section 1 that says, no senator or representative or person holding an office of trust or profit under the United States shall be appointed an elector. What is the purpose you see of that provision if your theory of the electors is correct?
Noah Purcell: Yes, Justice Kavanaugh. Thank you for that question. So the framers did not spend a whole lot of time talking about the exact role of electors, and they certainly did not agree on exactly what role they would play, but one thing that they were clear on was they did not want Congress choosing the President. And so they specifically prohibited members of Congress from serving in that role. But other -- but they left it to states to decide whether electors would serve as kind of -- you know, as Hamilton envisioned them, as the kind of sage chooser on behalf of the states or, as many other framers wanted, the electors to be agents of the people, to -- to -- to act on the people's behalf and for the people to choose them and for them to be bound to that outcome, to be bound to the people's preference. So -- so, yes, they imposed that limited limitation on who could serve, and -- and that is, you know, another example of a constitutional condition limiting states' authority. But, again, it just goes to the point that if -- if the state can set a condition to serve as an elector, that condition can be enforced.
Brett M. Kavanaugh: Mr. Lessig says that the framers considered various modes, obviously, and you agree and history shows they considered the states doing it directly, or at least that was an idea out there through the legislatures or governors. They considered Congress, as you just pointed out, but there was a separation of powers there, problem there. They didn't necessarily want the new President to be too dependent on Congress. A popular election was -- was not adopted. And so they came up instead with what Mr. Lessig describes as a indirect mode of selection with the model of electors who would exercise, as he sees it, their own discretion and independent judgment to pick the best person to be President, the best person to head the executive branch. And he says that mode remains indirect, consistent with the framers' choice, only if the electors retain a legal discretion. So, on that overall structure that Mr. Lessig sets up and describes the history, why is he not right, given that they rejected all these other modes?
Noah Purcell: Your Honor, the number -- the framers had a number of concerns about direct elections that included logistical concerns and concerns about the impact on the influence of southern states, but, ultimately, they settled on an approach that left it to the states to decide, as this Court said in McPherson, the broadest possible power of determination as to how to appoint electors and what role they would play. And -- and the -- the options open to states certainly included both leaving electors with discretion, as some states still do today, and states choosing electors specifically because they have pledged to support a particular candidate. And, certainly, by the time of the Twelfth Amendment, that had become the virtually universal practice in states. And the framers of the Twelfth Amendment well understood that and -- and adopted the -- the language of the Twelfth Amendment to facilitate that. And if you need a historical example, if that would be helpful, in -- in the election of 1804, right after adoption of the Twelfth Amendment, it -- it operated just as they had expected. The parties put forward presidential and vice presidential tickets, electors were chosen throughout the country because they supported those tickets, and every single elector in the country voted for the party ticket preferred by their state's voters. And -- and the meetings of the electors, even in 1804, were in many states mere formalities. They -- they filled out pre-prepared ballots. They did not discuss or deliberate. And Congress did not question a single one of those ballots or their validity. So that just shows that by the time of the Twelfth Amendment, as this Court has said repeatedly, the role of electors was simply to transmit the vote of the state for President.
Brett M. Kavanaugh: Thank you.
John G. Roberts, Jr.: Thank you, counsel. Would you like to take a minute to wrap up?
Noah Purcell: Yes, thank you, Mr. Chief --
Lawrence Lessig: Yes, I would.
Noah Purcell: Thank you, Mr. Chief Justice. Every four years, over 100 million Americans participate in our country's presidential election process. They attend rallies, they watch debates, and, ultimately, they go to the polls. More Americans participate in this election than in any other democratic process in our system of government. But, under Petitioners' theory, this entire process is irrelevant and always has been because all that matters is who the electors prefer. On their view, the electors can choose whoever they want to be President, regardless of any voluntary commitments they made to secure their position, regardless of how their state voted, and regardless of whether they are being bribed or blackmailed for their vote. That is not the law. The Constitution's text, the original understanding, this Court's precedent, and our country's historical practice all demonstrate that states are allowed to require presidential electors to vote for the candidate chosen by the state's voters and to enforce that requirement. We ask you to reaffirm that principle today. Thank you.
John G. Roberts, Jr.: Thank you, General. Mr. Lessig, you have two minutes for rebuttal.
Lawrence Lessig: Thank you, Mr. Chief Justice. Your -- Your Honors, the State has relied upon early statutes which it says affirm the power of the state to remove electors because they violate a condition. Absolutely none of those statutes have anything to do with the conditions on voting. Those statutes related to the appointment power. They were incidental to the appointment power. So you can see obviously that, incidental to the appointment power, the State has the authority to make sure someone -- someone shows up to vote. And we believe that general laws apply to electors as well. This is not a general immunity. But they have no power to control the vote and they never have exercised that. The State has asserted that because they appoint the electors, they get to control the electors. But, in fact, the authority they rely on is quite explicit. Myers, at page 119, says the reason for this is that those in charge of and responsible for administering functions of government need the authority to control them by removing them. That was the reason for the principle. But there is nothing in the founding to suggest that the framers imagined the states administering the Electoral College. That's why the states don't appear in the Twelfth Amendment at all. And, finally, Your Honor, if you recognize this power, how do you cabin it? If you find the State has the power to regulate electoral votes, may the State forbid the elector from voting for a candidate who has not visited the state, who has not released his tax returns, as bills in New Jersey and New York purport to do, or has not pledged to appoint justices who will uphold Roe? Open this door and there are an endless list of partisan opportunisms that will tempt the states. Throughout history, there have been amendments to change the elector discretion, every single time recognizing there was that discretion. For the State of Washington, in 1977, to discover it is to show they were chumps believing they didn't have this power. And we believe the power has always been with electors to exercise discretion. Thank you, Your Honor.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.