Courthouse Steps Decision: CO Dept. of State v. Baca and Chiafalo v. WA

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In Chiafalo v. Washington and its companion case Colorado Department of State v. Baca, the Supreme Court affirmed the power of the states to regulate the decisions of presidential electors. States may fine electors who vote for a candidate other than the winner of the statewide popular vote, and states may replace electors who attempt to vote for someone else. We can expect to see more states institute "faithless electors" rules for the 2020 presidential election and beyond.

Featuring:

Prof. Derek T. Muller, Professor of Law, University of Iowa College of Law

 

This call is open to the public and to the press. Please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum Conference Call. This afternoon's topic is titled "Courthouse Steps Decision, Colorado Department of State v. Baca and Chiafalo v. Washington." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Professor Derek T. Muller, a professor of law at the University of Iowa College of Law. After our speaker gives his opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Professor Muller, the floor is yours.

 

Prof. Derek T. Muller:  Thank you for having me. This is a long-awaited decision about faithless electors from the 2016 presidential election.

 

      As you may know, when we vote for the President of the United States, we are not actually voting directly for the president. In early November, we are voting for a slate of electors who are pledged, usually, to support that presidential candidate, and the Electoral College convenes in late December to cast the formal votes for the President of the United States.

 

      And, for a long period of time, now—really, since after the election of George Washington—we have expected that electors align with a particular candidate or a particular party. They cast a vote consistent with that expectation of the voters. And there have been occasional instances where there are what we describe as faithless electors—electors who vote in a way contrary to those expectations, of the desires of voters. But they've rarely exercised this sort of independent judgment that maybe the Framers, or at least some of the Framers, had anticipated they would exercise.

 

      So we can fast-forward to the 2016 presidential election where, after it becomes apparent that Donald Trump is the candidate who wins the most electoral votes after election day, there is some movement among some presidential electors to suggest, well, maybe we can vote for somebody else, or we can get a block of voters who would maybe support a different candidate. And, if so, maybe we can either deny Donald Trump the majority of the presidential electors, in which case someone else would win the election, or else, at the very least, the election could be sent to the House of Representatives so that they could choose a different candidate.

 

      So there were a number of these efforts throughout the country in different states, and two of them came at issue here—one out of Washington State. There were four electors who cast votes for candidates other than Hillary Clinton, whom won the popular vote in the state, and three of those electors voted for Colin Powell for president and various candidates for vice president. They were each fined, under Washington State law, $1,000 for breaching their pledge. Then, when they challenged those fines through state court, the Washington State Supreme Court affirmed the fines saying that they didn't have unfettered discretion; the state had the power to fine them in the event that they chose to vote for someone other than the candidate they were pledged to support. So that was the Washington State side of things in a case called Chiafalo v. Washington.

 

      And there was a second case that came out of Colorado, called Colorado Department of State v. Baca, where Michael Baca was an elector who, again, pledged to support Hillary Clinton. But he showed up at the meeting of the Electoral College and attempted to vote for John Kasich for president instead of Hillary Clinton and, when he attempted to do so, he was deemed to have vacated his office. He was then replaced by the electors with another elector who voted for Hillary Clinton, and then those votes were sent along to Congress, which counted those votes.

 

      So when Baca challenged his replacement, it went up through the district court in Colorado. And the Tenth Circuit found that Colorado's law was unconstitutional, that Colorado could not enforce this requirement, that electors have the discretion to be able to vote for whomever they desire, and the state can't replace him.

 

      So there was sort of a difference of opinion between the Washington State Supreme Court and the Tenth Circuit, and that's when it came to the Supreme Court in these pair of cases.

 

      So there's a little bit of a quirk that happened. These cases were originally consolidated to be heard together, but Justice Sotomayor, later in the process, realized that she had a personal friendship with one of the parties in the Colorado case, so she was dropped out of that case. So all nine justices heard Chiafalo, and then only eight formally heard Baca.

 

      So the Supreme Court issued its decision today. And the approach it took was one that a lot of people had speculated, which is that the principal opinion in Chiafalo, which involved all nine justices, was the one that was issued and, then, there was a very brief per curiam opinion in Baca, with Justice Sotomayor recused, saying, "Go back and see Chiafalo for the same reasoning." So, for the most part, these cases are decided together except for this one technical distinction that happened here.

 

      So, in Chiafalo, the decision of the Court is unanimous—or at least the result is unanimous. Eight justices joined in Justice Kagan's majority opinion, and Justice Clarence Thomas wrote a separate concurring opinion concurring in the judgment, which Justice Gorsuch joined in part. But all nine justices agreed that states do have the power to fine electors who cast votes contrary to the expectations of the voters, and they do have the powers to replace faithless electors, too.

 

      Justice Kagan's opinion really heavily relies on a case called Ray v. Blair, which was a 1952 decision out of Alabama involving whether states could even create this pledge in the first place. Alabama had had a rogue elector, if you will, in 1948, and they wanted to try to provide some extra certainty when they said, "Well, let's require electors to take this pledge." And there was no enforcement mechanism in place, just sort of a requirement to take the pledge. And the court there said, for a long time, electors have been exercising not their independent judgment, but essentially acting on behalf of the voters who have selected them to essentially act as their agents. So requiring them to take a pledge is something that the Constitution doesn't forbid states from doing, so states could require electors to pick a pledge.

 

      Now, the enforceability of that pledge was something that was in dispute until this case, and the Court again relies on this longstanding-practices kind of understanding that, really, electors have been very consistently faithful in terms of the votes they cast. When we think about longstanding, if you will, liquidation of precedent over an extended period of time, the Court relies on things like the recess appointment challenges in NLRB v. Noel Canning and points out these are longstanding expectations in our constitutional structure and the fact that we've, for a long time, had electors who are expected to vote in a particular way—Ray v. Blair says we can require them to take a pledge; now, in Chiafalo, they said states can fine them or states can replace them in the event that they choose to do something else.

 

      And the Court's majority opinion is really deferential to the states because -- and there's a line Justice Kagan uses where she says, "The Constitution is bare bones about electors"—that the Constitution doesn't have very much. It has this brief mention of appointment and process in how we count votes and how we transmit lists to Congress, but not much else there. The Constitution is necessarily silent. And, if that's the case, for the majority, that means broad discretion given to the states to control the manner of appointing presidential electors. That can include fining faithless electors or replacing them.

 

      And the electors' argument, when they raised this claim, said, "Look, the Constitution includes these phrases, like 'elector' and 'ballot' and 'vote.' And, when you see words like this in the Constitution, these are words that suggest a kind of independent choice, right? The opportunity to exercise judgment. Ballots are supposed to be private or secret. They're written down as opposed to an oral vote. Votes are supposed to be something that you have the decision to choose among things, right?" So this language, the electors had argued -- you know, Chiafalo and Baca said, this gives us sort of deference to make the decisions we want.

 

      But Justice Kagan was less than impressed with this line of reasoning, saying, "Look, they don't always mean independent choice. You know, if a person says, 'I always vote the way my pastor or my union boss or my spouse tells me to, and I just always do that,' I guess I'm not really exercising independent judgment anymore. But I'm still voting; I'm still casting a ballot in these cases, right?"

 

      So the Court was not as persuaded that these words in the Constitution actually required independent choice. And this was confirmed, she pointed out, by the Twelfth Amendment. So, in the original Constitution, the electors were supposed to meet, and they were supposed to vote for two candidates. Whoever got the most votes became president; whoever got the second-most votes became vice president. And this worked well when everyone wanted George Washington as president and there were a bunch of scattered votes elsewhere.

 

      But the system broke down in a couple of ways in 1796 where John Adams had his own vice-presidential candidate. They were running kind of as a ticket. But they realized your electors can't all vote for the same two people or else it's a tie, and the election gets sent to the House. But, then, it turns out that too many people voted for someone as their second choice other than Adams' preferred vice-presidential candidate, and Adams' enemy Thomas Jefferson is the runner-up and becomes the vice president in that 1796 election. And then, in 1800, everyone votes for Thomas Jefferson—or all the Jeffersonians vote for Thomas Jefferson for president and Aaron Burr for vice president. They tie, and it goes to the House of Representatives where they have to go to 36 attempts to vote to figure out who the winner is going to be before it gets to be Jefferson.

 

      These are two complicated systems and processes. But they also suggest, at this point—Justice Kagan points out—there's an expectation that electors are going vote for the party candidate. So, when the Twelfth Amendment is enacted in 1804 to allow electors to vote for a president and a separate vice president on distinct ballots, there's this implication within there that they're also going to be expected to follow through with the decision-making processes in terms of what a candidate wants or what the popular vote has expected or demanded. So the Amendment advanced this understanding, she explains, from the nation's first election. So whatever the Federalist Papers might have thought about the Electoral College, the Twelfth Amendment has updated, and it sort of altered the expectations at that point.

 

      And the authors had a challenge to say, you know, Congress has counted faithless electors before; we can point to all these faithless electors. And on the one hand, Justice Kagan says, well, yeah, they have. But there are instances where a candidate dies, and they vote for somebody else. So a lot of these aren't necessarily what we might describe as faithless. But she also says the fact that Congress has deferred to state decisions on faithless electors doesn't mean that we have to reject the fact that the state has penalized electors. So what's good for the goose is good for the gander. If Congress can count faithless electors, maybe Congress can also choose to reject the votes of faithless electors when the state has done so.

 

      And there are a couple of footnotes, in my mind, that were of note also in the opinion. One is the state emphasizes, look, when you appoint -- or the Court says that, when the state appoints electors, it has to be consistent with other provisions of the Constitution. So there are still some limits on what they can do. They can't violate equal protection, for instance. So, if a state were to have a racially exclusionary elector selection system, that would probably run afoul of the Constitution.

 

      Another is that, if states condition on appointments that impose new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause. And this is a suggestion that comes out of a case involving term limits from the 1994 Congress and an open question about whether or not states can add qualifications to presidential candidates—including, in recent years, people have talked about requiring candidates to disclose their tax returns as a condition of appearing on the ballot. And the suggestion here from the Court in this footnote is that it would call into question such laws that would add qualifications to candidates seeking the office of the president. That's one interesting footnote.

 

      Another was footnote 8 of the opinion. The Court notes, well, the electors point out what happens if a candidate dies between election day and the meeting of the Electoral College? Don't states have to exercise independent judgment? And some states actually have an express proviso that allows for electors to exercise their independent judgment if a candidate dies. Justice Kagan points out this is not before us. We doubt states would necessarily enforce it. Who knows what will happen?

 

      My view is there's an additional question about the Twentieth Amendment because we now might presume that, even if you were to vote for an ineligible president or a dead president, by inauguration day, the vice president becomes president. So there's this provision that recognized that death can be its own interesting wrinkle to consider when it comes to presidential electors. But, again, it was something that the Court didn't have to consider today.

 

      Then, Justice Thomas wrote a separate opinion concurring in the judgment. And part one of his opinion emphasized, look, the Court's not really being consistent with how it approaches constitutional text or the mechanism of the state. But, really, he focuses also in the opinion—joined by Justice Gorsuch—in part two of the opinion about the Tenth Amendment. And this is an argument that he had raised—and he lost—in this case in 1995 called Term Limits v. Thornton. He wrote an opinion on behalf of four justices saying, if the Constitution doesn't prohibit states from doing things, then the Tenth Amendment reserves those decisions to the state. And, in the '90s, he said, that means that states have the power to add qualifications or at least add a term limit requirement to members of Congress.

 

      And, here again, he emphasizes the Tenth Amendment—although not with four justices in defense, just Justice Gorsuch joining him—to say the Constitution is really silent in terms of the power to control elections and—as opposed to the majority, which just says this silence means states have power—we should be looking instead to the Tenth Amendment. And, if it's the Tenth Amendment, the Tenth Amendment means the states have this reserved power. So, when we're thinking about where the states' authority comes from, it doesn't come from longstanding practices or a broad consensus of historical understanding. It really ought to come out of the Tenth Amendment's power.

 

      But, again, that decision only joined by Justice Gorsuch. It received a little bit of attention at oral argument. I was intrigued to see if Justice Kavanaugh, for instance, was going to join that, but he didn't.

 

      In short, all nine justices agreed with the outcome: States can fine faithless electors; they can replace faithless electors.

 

      So what that means for today is all the existing laws on the books -- there's a variety of laws on the books. Some laws require a pledge with no enforcements. Some states have an enforcement mechanism. And a number of states don't have any rule at all. It's just, kind of, electors can exercise their independent judgment and, if they do so, there's no penalty, no fine, nothing like that.

 

      So we should expect the status quo, if you will, for the 2020 election. Faithless electors will have a much more difficult time in those jurisdictions where there is a penalty mechanism in place. So it will be difficult to rebel, like in 2016.

 

      But, more to the point, I would anticipate -- maybe not so many by 2020 because we've got a closing window by November but, certainly, by the 2024 election, I expect state legislatures to begin instituting new statutes in earnest to control and bind presidential electors. I think the activities of 2016 highlighted this sort of weakness in the system. For many voters, they don't expect to be -- when they vote for Hillary Clinton, they don't expect their elector to then show up at the meeting of the Electoral College and vote for Colin Powell or John Kasich, right? So my anticipation is states will begin to enact new statutes that will bind presidential elector discretion—probably more that will replace them rather than just fine them. But, you know, that remains an open question but certainly a green light to legislatures to alter how their presidential electors are chosen.

 

      With that, I'm happy to take any questions you might have.

 

Greg Walsh:  Perfect. Let's go to audience questions. We'll now go to the first question.

 

Caller 1:  A question: In 2020, what happens in those states that don't have legislation yet and people rebel and vote for somebody other than Biden or President Trump?

 

Prof. Derek T. Muller:  Yeah. Well, historically what's happened at other times—nothing.

 

      So, again, for a long part of America's history, there have not been laws binding electors, and there have been instances of faithless electors. Now, again, they're infrequent, and they've been historically infrequent. That's a reason why maybe a lot of states haven't done so. But in some recent examples -- in 2000, for instance, one D.C. elector just abstained from voting because she was protesting D.C.'s statehood issue. In 2004, an elector miswrote the name John Edwards in for president instead of John Kerry out of Minnesota. So there are these instances where these things happen. And, in 2016, there were no laws on the books in Texas. There were two electors who didn't vote for Donald Trump; they voted for someone else. So these have happened before. And, if it happens, then it goes to Congress. If someone in Congress wants to fight about it, they can. But the presumption is, if the state law doesn't regulate it or prohibit it, then the electors can exercise their independent judgment and do what they want.

 

      Now, one reason that this historically hasn't been a problem is because, most of the time, the Electoral College margins are very wide. So, even if there's one or two faithless electors, no one particularly cares too much in a given moment. You know, 2016 was the first time where there was a real concerted effort to get electors around the country to kind of join together and do something. Now, it didn't really work because, again, these were mostly Clinton electors that defected; they were on the losing side. And they weren't voting for the same person. They were voting for Powell or Kasich or whoever it might be.

 

      So I think the question is, in 2020, if there's going to be this push. If the Electoral College margin is very close, is there going to be a push in states that don't have these statutes in place to try to replicate what happened in 2016? Now, it will require a much closer margin. But, yeah, otherwise, if there's no legislation on the books, electors can do what they want. And then it's really up to Congress to decide whether or not to count them. In 1968, when they gathered to decide about a faithless elector in North Carolina who didn't want to vote for Nixon and voted for someone else, Congress looked at it and said there's no law on the books, nothing in the Constitution that says it. We're going to count the votes. And I would expect that to happen in 2020, as well.

 

Greg Walsh:  Perfect. Let's go to the next question. Caller from area code [INAUDIBLE 00:20:17].

 

Mike Stern:  This is Mike Stern. I have a question that may be a little out of left field. But, under Article V, there are two types of conventions provided for—the convention for proposing amendments and, then, conventions for ratifying constitutional amendments. A number of states have passed laws that purport to bind delegates to those conventions, particularly the proposing convention, which has never actually occurred. But a number of states have passed laws that say, "We're going to limit the discretion of delegates to an Article V convention as to what they can vote for." So, if a state applies for a particular type of amendment—the balanced budget amendment—their delegates can only be allowed to vote for such an amendment. Do you think this decision says anything about the constitutionality of such laws?

 

Prof. Derek T. Muller:  Mike, great question—a really interesting prospect.

 

Mike Stern:  Like I said, out of left field.

 

Prof. Derek T. Muller:  No, it's great. So first, obviously, if you have a robust view of the Tenth Amendment -- so you've got at least a couple of justices on board with that. And maybe others would get on board if they didn't feel like it was an elections-clause kind of issue. So I think there's the Tenth-Amendment sort of reasoning that could resonate and, again, persuade maybe more justices.

 

      It's interesting because we historically haven't had situations where we've been calling conventions where we need to bind those delegates to do certain acts. So, in some ways, it's tough to bring in the historical analog from the majority opinion here, which sort of relies on this fact that, every four years, these electors all show up, and they're all kind of expected to do the same thing, and they all kind of follow in suit, and they sort of do what's necessary.

 

      So it's an interesting -- but, at the same time, you know, Justice Kagan's point that the Constitution is very bare bones about this and, in a bare-bones structure—if we can continue the baseball metaphor—maybe tie goes to the runner or tie goes to the state to say, in a bare-bones structure, which this seems to be, Article V is pretty minimal in terms of what the conditions are to place upon electors—whether it's freewheeling—or how the states are supposed to do it in terms of their applications. So, if you're given that sort of freeform, open-ended provision of Article V, then it would suggest that, yeah, maybe states could delegate.

 

      So I think that portion of the majority's opinion is probably the most persuasive to thinking about the constitutionality of binding delegates to a convention, to say there's very little provision given in Article V, and given that bare-bones structure—and nothing that we think would otherwise prohibit the states from doing so, like a prohibition on adding candidate qualifications for president or Congress, as the Court has construed—without that sort of express proviso, we think that this is something that the states are empowered to do.

 

      And maybe, now—sort of walking back my earlier point—the fact that we haven't been holding conventions for extended periods of time and sending delegates there, the states have expected that they have this power, right? They've been acting as if they have it. And, when they pass these sort of convention proposals, they purport to bind the delegates, and there's this expectation. So maybe that's a factor that also cuts in favor slightly of the historical narrative, too. But it's a great question and one, now, I'm going to noodle over.

 

Mike Stern:  Great. Thanks very much.

 

Greg Walsh:  Perfect. Let's go to the next question.

 

Bob Popper:  Hi. This is Bob Popper. I have a question about the National Popular Vote Compact which, in effect, requires electors to vote for whoever receives the national popular vote's largest total. You could look at it as requiring faithless electors on the one hand. On the other hand, if states can put down any requirements they want, how does this decision affect the National Popular Vote Compact when, if it ever gets enough signers, it's going to come before the Court?

 

Prof. Derek T. Muller:  Sure. That's a great question.

 

      In my view, this doesn't dramatically alter how we view the National Popular Vote Compact proposal. On the one hand, it makes it a more reliable national popular vote winner. That is, if states can bind their electors to say, you know, whoever wins the statewide popular vote, those are the electors we're choosing, that slate of electors. And you electors have to follow through with your promise. They could also do the same thing and say, well, whoever wins the nationwide popular vote, we're choosing that slate of electors, and those electors have to follow through with the promise to vote for this particular candidate.

 

      So, in a way, it makes it more reliable. You're going to have fewer faithless electors, if you will. And, therefore, you're going to have a more reliable national popular vote winner if the compact takes effect.

 

      At the same time, I go back to the Court's footnote 4, here, where it says, listen, other provisions of the Constitution do control and bind what states do. They can't add qualifications to candidates; they can't violate the equal protection clause. So there are a few other provisions of the Constitution at play here. One that I've talked about is the Compact Clause—that I think that this is an interstate compact that would require congressional consent. But even in the event there is congressional consent, how do you handle it?

 

      Others have raised equal protection challenges to how you count votes in 50 different states when they're all running with different rules about voter eligibility and vote-counting standards and recount standards. There have been challenges to say that each state shall appoint, in Article II, a number of electors. And the notion is the state is no longer doing the appointment if it's deferring to some other body, which is the national popular vote winner. So there are some of these sort of structural claims that apply.

 

      So I think, in the event the National Popular Vote passes, there is going to be, again, a little bit more reliability on the faithless elector side. But, at the same time, I don't think it fundamentally alters the kinds of legal challenges that will inevitably be brought to contest whether or not it's a viable, legitimate thing within our constitutional framework.

 

Greg Walsh:  Let's go to the next question. We have one caller in the queue.

 

Caller 4:  Yes. My question was in regards to, if we have all of the electors vote with the popular vote, as said to be, would that defeat the purpose of having a republic, and wouldn't it make sense to just have a pure democracy in that sense?

 

Prof. Derek T. Muller:  It's an interesting question to think about what the Electoral College is still doing at that point, right? In my view, I think the Electoral College still functions to, first, disburse our elections on a state-by-state basis. The elections are still administered among the 50 states and D.C. Again, different states have different voting standards, different voter qualifications. Different candidates appear on the ballot. Ex-felons can vote in some states; incarcerated felons can vote in some states. It's sort of a wide spectrum in some ways—less today, maybe, than it was 200 years ago, but certainly some. So it disburses that.

 

      Also, because the Electoral College is allocated on the basis of Senate and House representation, it ensures that every state gets a minimal say. So small states get some minimal say and, even though Wyoming and Vermont might proportionately have a much smaller population than California, they get a little bit more of a boost in the Electoral College because they each have two senators, and that gets them somewhat of a boost relative to California. And that's, again, part of our sort of federalist structure where we defer to the states and ensure that the states of state have some of this representation.

 

      So I think there's still some place to think about how the Electoral College functions and how the way it operates in terms of allocating power among the states still works. But you're right. One element is thinking about the presidential electors who no longer serve as this independent function where they show up and just vote for somebody, but -- to the extent that they haven't been really doing that since maybe the Founding. At the Founding, I guess, everyone expected the electors to all vote for George Washington. But, even by 1796, the electors were all sort of party loyalists voting for one person or another with very rare exceptions.

 

      So, while we're formally, maybe, thinking about a different structure to presidential elections, in practice, I don't know that it really makes much of a difference today than it was at the time of the Twelfth Amendment.

 

Greg Walsh:  It looks like the caller queue is wide open.

 

      Professor, while I have the opportunity, I know you said that you didn't foresee this decision as having a significant impact in the upcoming election, but have you heard any rumblings from state legislatures about trying to pass new regulations in light of this decision?

 

Prof. Derek T. Muller:  Not in the last couple of hours. But I will say the Uniform Law Commission, about 10 years ago, developed a rule, and they were trying to be very conscious of what Ray v. Blair required. They wrote an amicus brief supporting the states in this case. There was an amicus brief on behalf of, I think, 47 states—I think D.C. also joined it; I think only three states didn't join the brief—all saying that states should have this power. And this includes the states that don't have rules on their books right now. So I think it's going to be an interesting conversation in state legislatures about what they want to do. I imagine a number of states will immediately enact rules saying, well, if we're good to go on this, and there's no question about it, and this is sort of a loose end that we don't want, we'll pass a statute.

 

      At the same time, the discussions do look a little different. I had a conversation with a legislator in Washington State after this decision who said, look, one of the reasons we like having a fine rather than replacing the elector is we want you to be able to exercise your independent judgment if you really want to. But, if you really want to, there's going to be a penalty that attaches to it. So you have to think that you're really doing it for a purpose and for a reason and give some materiality to that.

 

      So maybe some states are going to come to kind of compromise decisions like that one in Washington. Now, Washington's repealed that statute, so it's also like its own sort of thing. But my anticipation is a lot of states don't like this kind of uncertainty. They want higher degrees of certainty. They like the fact, now, that, when they print the names on the ballot, it's going to be someone who's going to support that particular candidate.

 

      And I think this doesn't have a partisan valence, right? If you vote for Biden, you want your electors to vote for Biden. And if you vote for Trump, you want your electors to vote for Trump, right? So in legislatures, whether it's controlled by Republicans or Democrats, they both kind of want the same thing. If their candidate wins, they want their electors to vote for the winner. So I think that's also an unusual area of consensus for state legislatures—that, while sometimes election laws have a high partisan valence concern, here, you don't really have that. Here, you really have the interest of both major parties aligned, and I would anticipate that makes it easier to enact legislation. And, given that you do have sort of a ready-made Uniform Law Commission statute, I image it will be something that will be in the minds of legislatures.

 

      Now, it's off-term for a lot of legislatures right now—not only summer but, for part-time legislatures, they're often off. So that's why I think it's going to be a little bit less for 2020. But I do anticipate in 2021, I would think, we'll start to see a flurry of these. But, you know, time will tell.

 

Greg Walsh:  Thank you. While we wait, I encourage callers to keep an eye out for emails announcing upcoming teleforum calls. You can also consult the full schedule of our upcoming telefora on The Federalist Society's website, fedsoc.org. Also available there are podcasts of previously recorded teleforum calls you may have missed as well as on iTunes, Spotify, and Google Play.

 

      It looks like the caller queue is still empty. Professor, do you have other comments you would like to make on the decision today?

 

Prof. Derek T. Muller:  No, I don't think so. Like I said, this won't really disrupt the status quo. I think states that have bound their electors—now it's been tested; now they know they can bind them. States that don't have them on the books—they thought either it was unimportant or that it was sort of a low risk—maybe there are going to be efforts in 2020 to sow some of the chaos that was proposed in 2016. But I think this is going to really clamp down on that in some of these jurisdictions that have these rules. These rules are going to be deemed enforceable and, therefore, you've significantly reduced the number of jurisdictions where you could persuade electors to vote for someone else.

 

      And then, again, I think that there's going to be a movement in the state legislatures. So the interesting question, to me, is to see how many state legislatures will make changes to their statutes and how quickly and, then, the reasons why some states might choose not to if they choose to -- if they value this independent discretion. But time will tell.

 

Greg Walsh:  It looks like the caller queue is still wide open. Professor did you -- in the original Washington case, there was one dissenter. But the Supreme Court today unanimously affirmed the decision. Was there any reference to that one dissenter's points in the Court's opinion?

 

Prof. Derek T. Muller:  No, I don't think -- not that I saw. And I think they also didn't spend a lot of time examining the Tenth Circuit's reasoning, either, even though the Tenth Circuit, by a two-to-one vote, concluded that the state did not have the power to replace the electors. So they didn't spend a lot of time critiquing that judgment or spending time focusing on what the lower court opinions had said.

 

      In the Tenth Circuit, they made a lot of the electors' arguments in terms of the language used—of "elector," "vote," "ballot"—to suggest discretion. The Supreme Court, here, didn't spend a whole lot of time talking about the Tenth Circuit opinion. They kind of, as I mentioned, said, well, just the fact that you use those terms doesn't necessarily require independent choice. We can use those terms in ways that commonly suggest the act of voting or casting a ballot without independent choice. So I think that—as the Supreme Court is inclined to do, perhaps—it engaged in its own reasoning without a whole lot of express engagement with the lower court decisions looking at it.

 

      Another thing is maybe part of it's because it's unanimous. It's a pretty easy read; it's a relatively short opinion—not too short. It's about 20 pages, I think. And part of that is because, I think, this opinion was issued in May -- or the argument was in May -- so they had a pretty short turnaround time to get an opinion out. But, also, it was unanimous. And I think the Court readily just said this is a decision that's longstanding history; we're not going to disrupt the status quo or settled expectations. So it's a pretty straightforward read from Justice Kagan, here.

 

Greg Walsh:  Perfect. We have two callers in the queue, so let's go to them now.

 

Caller 5:  Hello, gentlemen. Is there anything in this decision that might be interpreted as authority for a court to order an elector to vote according to his pledge even in a state that doesn't have a statute on the books requiring it?

 

Prof. Derek T. Muller:  It's a great question. I don't think so at least from my first read. Although maybe a second or third read will lead differently.

 

      So the thought is this is really a question of state discretion and what the state chooses to do. And the Court emphasized, look, if states want to have faithless electors or independent actors as electors, they've done so in the past. There was a fight in Congress in 1968 about whether to count that vote; they did count it in part because the state law didn't prohibit them from doing so. So I think the thought was that this is sort of a question of state power and, therefore, no problem.

 

      An interesting, more-advanced kind of question would be, I think, look, the contemporary ballot lists Donald Trump or Joe Biden, and it doesn't list their electors. And, when you vote, there's this expectation of voters that, when you're voting for those candidates, you're voting for those candidates, even if you're indirectly doing so through the electors.

 

      And there was a brief in this case from Professor Bob Bennett at Northwestern talking about how ballot structure today would give these expectations to the voters, and it would be unfair—or we'd have to at least redesign the ballot—if they weren't able to rely adequately on those expectations. So I think that's a different kind of argument to suggest that somehow the state's power over the ballot and the decision to list just the names but not the electors, then, might suggest that electors have to, even in the absence of state requirement, vote for a particular candidate.

 

      But I don't think that's something that comes out of this opinion. I think that's a more complicated argument to make. Again, the majority seems to suggest it's okay for electors to cast faithless votes if they want to, but it really is a question of state discretion. And this was a question of whether the state can add this requirement. Whether or not electors are compelled to do so, I think, would be a bridge too far for some of the justices. But I don't know. I would have to think about the context in which those kinds of claims might arise.

 

Caller 5:  Thank you very much.

 

Greg Walsh:  Let's, now, go to the next question.

 

Caller 6:  Hi. The comment about state legislatures having -- or revealing the electors made me wonder how is this going to play with emergency changes being made to elections in response to coronavirus? Obviouslywith regards to the electors, there's been at least one, I think, general suggestion that state legislatures would just [inaudible 00:39:11] this year. But there's obviously a lot of changes that are going to happen as well. So how does this relate to that?

 

Prof. Derek T. Muller:  In the event that state legislatures are already thinking about omnibus election-law changes to the fall—if they're thinking about one-time or longstanding changes to absentee ballot rules, absentee ballot applications, extended early voting, rules about postmarking ballots and counting them, all kinds of things like that, signature-gathering requirements for independent candidates—to the extent that state legislatures are thinking about those -- and some state legislatures have been passing such statutes in the last couple of months, so not everyone's gone. To the extent that state legislatures are thinking about that, to me, this seems like a kind of natural fit to roll in with the election-law-related coronavirus concerns about elections to the extent that legislatures are thinking about it.

 

      Again, you have a sort of ready-made statute from the Uniform Law Commission. You have the recognition that states want to reduce uncertainty, reduce anxiety when they're thinking about the 2020 election. And, again, it doesn't have a sharp partisan valence, unlike some of these other things, which—absentee voting or vote-by-mail seems to have drawn some partisan scrutiny—and maybe has a higher partisan valence. So I think it's right to think that, if state legislatures are already thinking about updating their election codes in 2020, then this is something else that they're going to also throw in there.

 

      There have been a lot of changes that have happened in voting that have been driven by either executive order, by secretary of state discretion based on existing discretion on the books, or by federal courts reviewing statutes under a balancing test of the freedom of association under the Constitution. I don't think, in any of those domains, you're going to have the authority to bind the legislatures—and for good reason because I think the legislature is given the power under Article II to direct the manner of appointment, as you point out, if they want to appoint it themselves—although that also seems extremely unlikely.

 

      So I think rolling in additional rules regulating the discretion of electors would be a sort of natural addition to the coronavirus updated statutes. But, again, it's just a guess, thinking about the closing window of time and whether or not legislatures are interested in adding one more piece or how controversial that would be. Maybe it won't be controversial, and maybe, because you've got a Uniform Law Commission statute, it's going to be a lot easier. But, yeah—we shall see.

 

Greg Walsh:  Professor, is there anything you want to conclude on before we finish up today?

 

Prof. Derek T. Muller:  I'll just mention, sort of historically, there is this mismatch between theory and practice, in some ways, when we talk about the Electoral College. We have these theories of electoral independence, and then, we have the practice where they have very rarely exercised that. And you have the theory of electoral independence where they're going to vote for the best available candidates. With the practice of 2016, which was -- John Kasich had said, "I'm not running for president" after he dropped out. And Colin Powell was certainly not running for president. So it's an interesting comparison to think about what we might, in the best universe, anticipate the Electoral College to do and the way it actually operated.

 

      So this is an opinion, and I think Justice Kavanaugh, during oral argument, raised expressly the idea of the do-no-chaos kind of theory of judging, which is sort of maintaining the status quo and settled expectations. But I do think, you know, this is going to result in some changes as I mentioned. I do think state legislatures are going to react and respond and enact more such statutes.

 

      Again, practically speaking, because there have been so few faithless electors, it's going to be hardly a blip on the radar for your average voter who has reliably voted and seen their electors follow through. But it is a change, and it is something that we'll see in the years ahead.

 

Greg Walsh:  Thank you.

 

      On behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.