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

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On May 13, 2020, the Supreme Court will hear arguments in a pair of cases concerning the Electoral College. In Colorado Department of State v. Baca, Case No. 19-518, the Court will consider the claim of a presidential elector in Colorado who attempted to vote for someone other than Hillary Clinton, despite the fact that Hillary Clinton won Colorado's popular vote, and was replaced by another elector. In Chiafalo v. Washington, the Court will hear the claims of three presidential electors who were each fined $1000 after they voted for a candidate other than Hillary Clinton in 2016, who also won Washington's popular vote. The cases will examine state power to regulate the actions of presidential electors and could affect how electors behave in the 2020 election.    

Featuring:

Prof. Derek Muller, Associate Professor of Law, Pepperdine University School of Law

 

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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 Oral Argument, 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 expert on today's call.

 

      Today, we are fortunate to have with us Professor Derek 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. I appreciate it. As a disclosure, just as an opening, I filed an amicus brief on behalf of myself in support of neither party here. But moving on to the cases today.

 

      So these faithless elector cases really started in the 2016 presidential election. After it was apparent that Donald Trump was the presumptive winner of the Electoral College, a number of presidential electors began to look at ways they might be able to alter the outcome of the presidential election. Now, when we vote in November, we're not technically voting for the president; we're voting for a slate of presidential electors. And each state receives a number of electors equal to the number of members of the Senate and House of Representatives—between 3 and 55 electors. Most of the states have a winner-take-all slate, so whichever presidential candidate gets the most votes in the state, they get all of that state's presidential electors. And these electors are party loyalists. They're people picked by the parties' convention, by state nominating conventions, by presidential candidates themselves—it varies from state to state. These electors meet in late December, and they formally cast their votes for the president; 270 electoral votes gets you the presidency.

 

      So some of these electors started to say, "Well, you know, maybe there's a way for us to act independent of the will of the people, the will of the voters in our states. And if we can vote for somebody else, maybe Donald Trump won't become the next President of the United States." Now, this movement didn't work very well, number one, because Donald Trump won by a fairly sizeable margin and, number two, most of the electors who signed this pact pledged to support Hillary Clinton, not Donald Trump. So it wouldn't have really ended up changing the outcome of the election.

 

      Nevertheless, in the 2016 presidential election, we saw a significant number of electors change their votes and vote for somebody else other than Donald Trump or Hillary Clinton. Two cases in particular are noteworthy. There were a number of other litigations that happened around the country, but the two cases before the Supreme Court deal with two different statutes in Colorado and Washington.

 

      Washington State has a rule in place that said, if you vote for anyone, as presidential elector, other than the person who received the most votes from the state, you can be fined up to $1,000. So Washington had 12 presidential electors. Four of them voted for someone else; three of them voted for Colin Powell for President of the United States. And, after the election, sometime later, the state fined them each $1,000. Before the Washington State Supreme Court, the state supreme court said legitimate fine; something within the state power to control electors.

 

      On the flip side, in Colorado, there was an elector, Michael Baca, who attempted to vote for John Kasich instead of Hillary Clinton and, when he did so, he triggered a statute under Colorado law that says, if you refuse to act—which under state law includes voting for someone other than the candidate you were pledged to support—you vacate your office. So, the moment he attempted to vote for John Kasich, he was deemed to have vacated his office. The rest of the electors replaced him. They cast nine votes for Hillary Clinton. That went to Congress, which ultimately counted them at the end of the day. And, when he litigated this case, the Tenth Circuit came out with an opinion that said, "Yeah, Colorado's law is unconstitutional. Colorado cannot constrain the activity of presidential electors. They have a right to be able to cast a vote unfettered from state regulations to the contrary."

 

      So these are the two cases that were up before the Supreme Court today. They were originally consolidated, and then they were separated when it was discovered that Justice Sotomayor had a personal friendship with one of the plaintiffs in the Colorado litigation. So we got more than two hours of argument for these two cases, and Justice Sotomayor was recused from the Colorado litigation.

 

      It was an interesting argument on a number of fronts. I'll try to hit some of the highlights, and maybe, in the question-and-answer, people can draw out some other questions about the posture of this litigation.

 

      So one longstanding concern about these cases is the source of state power to regulate presidential electors. On the one hand, undoubtedly, states have some power to condition the appointment of electors. They can say things like you have to be a resident of the state. They can add some qualifications to them. Everyone pretty much agrees that's okay. If they don't show up, you can replace them. You can fill vacancies in the Electoral College.

 

      The question is about this sort of activity of voting. When they vote, does the state have any power to constrain their behavior, penalize their behavior, whatever it might be? Also, the state is looking at the text of the Constitution: Article II, which says states can direct the manner of appointing electors; the Twelfth Amendment, which was later -- continued that power but emphasizing that you're supposed to vote by ballot. You write the name of the president on one ballot; you write the name of the vice president on another ballot; Congress counts those votes. There's a lot of fighting about whether the power is really the state's power to direct the manner of appointing electors, or can the state not impede the electors' power to cast a vote or to cast a ballot, which suggests some kind of discretion—or at least discretion unfettered from the state.

 

      One additional point that popped up in argument was a question about the Tenth Amendment, which I found pretty interesting. The Tenth Amendment says that powers not granted to the federal government or denied to the states are reserved to the states, and if they're reserved to the states, the states can kind of do what they want. They're not constrained by what the constitution gives them affirmatively. They hold these reserved powers.

 

      Justice Thomas, early in the arguments, started to ask about that. But Washington never really relied on that point. Colorado had, but Washington hadn't. And then, later in the argument, Justice Kavanaugh, the most junior justice on the Court, also raised the Tenth Amendment argument. This was interesting because, about 25 years ago, in a case called Term Limits v. Thornton, the Supreme Court held that the Tenth Amendment didn't give states the power to add qualifications to candidates seeking congressional office. In that case, Arkansas tried to put a term limit statute to apply to members of Congress. The Court said, "You can't do that. The qualifications enumerated in the Constitution are exclusive, and states have no power to add to them. Additionally, the Tenth Amendment doesn't apply because states don't have any reserved powers in federal elections. Federal elections are a creation of the Constitution, something Justice Story wrote long ago. So, if they don't have reserved powers, they have to be specifically authorized within the Constitution."

 

      Now, Justice Thomas wrote a dissent in Thornton on behalf of four justices saying, "No, we think the Tenth Amendment really does apply here." So when he said that at oral argument today, it may not be too surprising. But Justice Kavanaugh, who has not been on the Court long and who replaced Justice Kennedy who had rejected the Tenth Amendment argument in Thornton, seemed amenable to the Tenth Amendment argument here.

 

      And that led to, later on -- now, in a normal oral argument, the justices might sort of speak over each other or respond to one another when they hear a remark like that. Here, they had to wait because, in the oral arguments that are happening telephonically, they go in order of seniority down the line. So we had to wait several more minutes until Justice Sotomayor got to speak, and then she pushed back on the Tenth Amendment argument. And, later in the argument, Justice Kagan did the same thing, suggesting Thornton foreclosed this possibility of power exercised by the states. So I view that as an interesting aspect of the case. It was something that Colorado talked about and Washington didn't, but something that seemed to get at least some of the justices' attention and maybe in ways that were unexpected, at least unexpected from what I was anticipating thinking about Thornton. Then, maybe Thornton isn't as solid a precedent as I might have otherwise anticipated.

 

      So, throughout the oral argument, the justices on the Court were very much concerned about limiting principles. They were asking every side, "What is the limit of your argument?" The electors were arguing for a very broad discretion to be able to vote however they wanted, even going so far as saying they were allowed to vote by a coin flip and the state would have no power to restrict them. They were drawing analogies to juries, drawing analogies to senators and representatives who are accountable to the ballot box only sometime after the fact. They're not punished for the votes they make while they're sitting in office.

 

      And some of the justices on the Court continued to push themlike Chief Justice Roberts asking about if an elector votes for a giraffe, or Justice Thomas, if they vote for Frodo Baggins, what are you supposed to do? But there was a strong inclination on behalf of the electors to say there's this power that the states just don't have. It's something the Framers contemplated. They contemplated lots of evils that might arise from the system. They'd had the chance to amend the Constitution many times. The Twelfth Amendment is one. The Twentieth Amendment dealing with presidential succession and moving up the date of inauguration is another, where Congress looked at it and said, "We're not going to touch it, and we're just going to leave elector discretion as is."

 

      On the flip side, the states suggested there is really strong power on their behalf to regulate what electors could do. And, when pressed repeatedly about what the limits are, the advocates said, "Well, you know, the Constitution says members of the Senate and House can't be electors, so that's a constraint. We can't appoint them as electors. Or the Equal Protection Clause applies. We can't discriminate on the basis of race." They were very unwilling to suggest there were other limits on the power apart from a handful of these things. So both sides had fairly, in my view, maximalist views of their power, maybe because they're anticipating what's going to happen. In the event the Court does decide this case, it's going to have to be drawing these lines, and they want to stake out the significant positions. But I think everyone is having difficulties with coming up with line drawing. Maybe that was deliberate. But the justices definitely seemed frustrated looking at that.

 

      Now, one interesting point on the limiting principle occurred early in the argument and then came up time and time again, and that was related to bribery. Professor Larry Lessig, who brought this case and argued the case on behalf of the Washington electors, made an important claim pretty early on in relation to bribery. The question arose about, if an elector is bribed, can that elector be removed from office? And he said yes, but only if they've been convicted before they voted. If they've voted, there's no opportunity to replace them, to cancel their vote. And you don't have the authority to remove them before the vote if they haven't actually been convicted of bribery. So that, I think, rubbed a number of justices the wrong wayto suggest maybe we don't need a criminal conviction. But surely there's something that strikes us as fundamentally wrong that an elector is bribed and there would be no state authority to replace them as a result of the bribe. So that came out time and time again. It might have been a position that didn't need to be reached. It might be something the justices are able to figure out and accommodate in writing their decision. But it was one sort of notable limiting principle that struck me in the argument.

 

      Another is the procedural posture of these casesmultiple concerns arising that this is somewhat of a manufactured case. We all know that litigation doesn't get to the Supreme Court unless the litigants are particularly strategic, thinking about how they're going to set off the case and how they're going to argue it and how the issues are going to be raised. And here, obviously, there's an important circuit -- or not really a circuit split, a split between the Washington State Supreme Court and the Tenth Circuit about the authority of states to control presidential electors. But one issue in the case -- it's a little bit technical, but the Colorado case was brought under a Section 1983 litigation civil rights claim against the State of Colorado. And it's pretty widely understood that you can't bring a claim against a state in this posture under § 1983, but Colorado sort of waived that and submitted to jurisdiction.

 

      So Justice Breyer, in particular, seemed troubled by this for both sides to say, "What's to prevent anyone from just stipulating that we want a federal court to hear this case?" The parties said, "Well, it's not jurisdictional," which I think is a contestable proposition, saying, "Well you're supposed to decide the cases as they're brought to you." But I think there's some concern on the Court that they don't want to needlessly issue decisions, particularly if there's no statutory authority to do so under § 1983. But Justice Breyer was the only one who pushed that; it's not clear how widely that's perceived on the Court.

 

      There were some other concerns about standing. The justices didn't seem particularly interested in pursuing those concerns as well.

 

      Finally, the Court spent a long time talking about some of the pragmatic concerns. I see this as a lot of the justices were focusing on the pragmatics. Justices Breyer, Alito, and Kavanaugh extended this discussion repeatedly. Justices Kagan and Gorsuch had some discussion too. I'm thinking about a couple of kinds of practical concerns that the justices really focused on. One is the uncertainty that this decision would bring. If the Court were to hold that presidential electors could not be bound or could not be required to vote a certain way or could not be replaced in the event they did something absurd, wouldn't this bring some unpredictability or uncertainty to presidential elections? Justice Kavanaugh actually referred to this as the "avoid chaos" theory of judging, where the judge should maybe be thinking actively about the consequence of the decision and the unpredictability of it.

 

      Now, the electors, to their credit, said, "Let's point out the fact that many states don't have rules binding presidential electors or prohibiting them from voting in a particular way. Many states, for their entire history, have never had such a statute, and this has never been a problem before, so we don't think it's going to be inviting chaos or sowing discord in the United States." At the same time, it was suggested, "Well, in 2016, there was this unique, concerted effort to try to get electors to change the outcome of the presidential election, and this litigation is sort of another step in that process to attempt to do so."

 

      Anotherand it's a version of this, but it's not as directly outcome or results based as that line of questioningcame from Justice Kagan. And Justice Gorsuch suggested this too. But Justice Kagan was saying, "I'm looking at the Constitution, the text, the history. I'm just not terribly convinced. It looks like the Constitution is somewhat silent on this issue. I think the history cuts in multiple directions. On the one hand, states have not formally bound electors, historically, until recently. On the other hand, there was an expectation from very early in the republic that electors were going to vote a particular way." So she suggested, "Well, if I can't figure out which way I'm supposed to come out, why don't I just let the states figure it out. And, if states want to bind electors, they can; and, if states don't want to bind electors, they don't have to."

 

      So that was another sort of practical concern, looking at the absence of a directed outcome in the Constitution. And in some ways that's consistent with the Tenth Amendment argument, again, that Justices Thomas and Kavanaugh were raising earlier: "If I can't find something in the Constitution that permits the states to do so, maybe it's within these reserved powers that are not sort of enumerated in the Constitution."

 

      So the Court, I would say, on the whole, seemed uneasy with the prospect of the electors' claim, the notion that they would have this unfettered discretion to be able to do whatever they wanted and that states had no power or authority to bind them. While at the same time, I think, they recognized that there was a lot of history that cut against the states, that there's not a lot of historical claims to say they had the power to replace electors, much less electors who have tried to vote or have actually voted.

 

      So it's not clear how the Court's going to come out. But it did seem to raise a number of practical concerns and limiting principle concerns to suggest that they are acutely aware of the concerns in whatever decision they reach out of the November 2020 election.

 

      So, with that, I'm happy to take any questions you might have about the case, the oral argument, or the presidential electors' issues writ large.

 

Greg Walsh:  We'll now go to the first question.

 

Mitchell Keiter:  Hi. Mitchell Keiter calling from Los Angeles. How exactly would this work? I mean, I know we live in a representative democracy, but we don't vote for the electors. Their names are not listed on the ballot; it's the candidates' names that are listed on the ballots. So it's hard to say that we are somehow delegating the task to electors when we don't even know who they are. Essentially, our vote is for a candidate and, therefore, electors who pledge to support that candidate. So it seems to me different from other forms of representation. And it would seem to really undermine the voters' rights to elect a candidate to delegate that to people we don't even know.

 

Prof. Derek T. Muller:  That's a great point. It was one that was raised by the states, especially Colorado, emphasizing this would undermine the right of the voters, which is a different kind of concern. I can't remember which justice also raised that concern very expressly. It might have been Justice Kagan or Breyer talking about the right of the voters here who seem to have dropped out of the process a little bit.

 

      Professor Bob Bennett at Northwestern has a really good brief talking about this as well. You know, 150 years ago, when we voted for president, you would vote for electors, and you would see all their 10 or 20or, in California, 55names on the ballot. You might scratch some of them off if you didn't want to vote for them all, or you might add some in. But, about 100 years ago, states started saying, "Oh, this seems like a silly process. Why don't we just vote for everyone at once. Just check one box instead of having to check 50 or circle 50 names." And then, over time, almost all of the states have even dropped the listing of those names off the ballot itself.

 

      So I do think, to the extent that electors are given this unfettered discretion, it does raise some new concerns, not just about the rights of voters being turned on their head when they show up at the polling place and say, "I'm voting for Hillary Clinton; I'm surprised to find that it's actually three electors who are going to go vote for Colin Powell." That doesn't seem like part of the bargain that we had in the first place. So, if it does so, I think -- if the Court does come out with this decision, I think it will invite new litigation about how states even conduct their presidential elections in the first placewhether or not the form of the ballot is going to have to be different, whether or not the names of the electors are going to have to be listed and people ought to be able to cast votes individually for them. So it is an additional round of concerns that did appear a little bit at oral argument and is in some of the briefing in this case.

 

Greg Walsh:  Okay, let's go to the next question.

 

Ilan Wurman:  Hey, Derek, it's Ilan Wurman at Arizona State. Thanks for doing this. I was hoping you'd elaborate more on the Tenth Amendment argument that was made in dissent in Thornton because my instinct is your instinct; it seems a bit weird. If it's a creature of the Constitution, then the states didn't have this power beforehand, so it's not reserved to them. But I just looked at the Tenth Amendment, and it says the powers not granted by the Constitution or denied to the states are reserved to the states, which seems to be more like -- have a broader category of power. So maybe that cuts in favor of state power here. But then the Tenth Amendment would be a grant of power instead of confirmatory and just sort of a rule of construction, which is what I always assumed it was. So what was Justice Thomas' argument in Thornton in dissent there for those of us who are uninitiated? Thanks.

 

Prof. Derek T. Muller:  Absolutely. Thanks. That's a great question. As briefly as I can, especially since I haven't thought about Justice Thomas' dissent in a little while, he emphasizes that when you look at some of the decisions that might have existed at the Founding in particular, states presumed they had some power to add qualifications to members of Congressthat a number of states added residency requirements, that members of Congress had to reside in a particular district and things like that. So the assumption was if states are doing this stuff, where's it coming from? It's not coming from an affirmative grant otherwise in the Constitution because the Constitution does things like states can control the times, places, and manner of holding elections. Well, maybe you call that the manner of holding elections, which is an argument some have made. But others would say, well, listen, even if the Constitution has not affirmatively restricted state power in this area, as long as the Constitution hasn't prohibited states from adding qualifications, then they're able to do what they like with their own representatives.

 

      This is an interesting, kind of complicated argument he makes in dissent because that case is a congressional elections case. He says, "Well, I don't think that they have the power to control presidential candidate qualifications because it's not sort of a representative of that state. It's not coming out of that state." And another component of his argument was the notion that these representatives of Congress are sort of creatures of state regulation in some respect. The state gets to decide who the voters are; the state gets to decide when the election's going to be held unless Congress holds it otherwise, and so on. And, if that's the case, they can add some qualifications to the people in their own state. When it comes to presidential elections, it's a little more complicated and not necessarily so.

 

      Now, presidential electors are of your own state, right? They are coming from your state. It's not like the presidential candidate specifically who is representing or being elected out of the 50 states. The electors are coming state by state. So, I think, to the extent the Tenth Amendment argument works out of Thornton, it's derived from this notion that, if the Constitution hasn't forbidden it, and it's something that's reserved, then, to the states to sort of do what they'd like because it hasn't been prohibited, they're able to do so and exercise that authority.

 

Greg Walsh:  We'll now go to a caller from DC.

 

Caller 3:  I'm completely new to this area. So I was intrigued by question or a comment that you made about the justices conceded that, if an elector had been bribed, he could be removed so long as the removal occurred before the vote. What was the basis for the concession that an elector who took a bribe could be removed? It seems to me that they would concede the state's authority to impose some standards on electors.

 

Prof. Derek T. Muller:  Yes. I think, for the electors, they concede that there are certain restrictions you can put in place at least before they've voted. So some of the emphasis -- there was a question with Justice Breyer early in the argument where he said, "Can states require you to be a resident of the state?" Yes. "And, if you leave the state, if you've moved out of state before Election Day or before the meeting of electors, can you lose your office? Can you vacate your office and be replaced?" And the elector said yes, you can. So I think there was a recognition that states could place some restrictions or conditions on the electors, at least in terms of their appointment.

 

      But the contrast is in relation to their voting. That is, they wouldn't have the ability to restrict them once they started to engage in sort of election stuffcasting a vote, filling out a ballot, signing the list of names of who received votes, and so on. So I think that the notions were that maybe there is some legitimate -- and maybe we can have some debates about the proper scope of authority to appoint or replace electors prior to the vote taking place. But, for the electors here, they said, well, once you sort of show up at the ballot box, if you will, and you start writing down the name of Colin Powell or John Kasich or Donald Trump or Hillary Clinton, once you start to do that, that is a vote. You are an elector. You're casting a ballot. And these all suggest some level of discretion that occurs in which the state has no power. Again, thinking back to what senators do, what members of the House of Representatives do, what jurors do, was the analogy that they raised.

 

      So they were drawing much more of a time-related function in thinking about the authority, and the justices and the Court were trying to really press about what that looked like when you were casting your votes for giraffes or things like that. What are the things that the state could or could not do at that stage?

 

Greg Walsh:  We'll now go to our next caller.

 

Allen Vixler (sp):  Yes, hello. My name is Allen Vixler. I'm calling from New Jersey. It seems to me that, if you go back in history, there was a time where the electors were pretty much appointed by the state legislatures. And, therefore, it seems to me, at least historically, the argument that, if the electors are free to vote for whomever they choose, that that somehow thwarts the will of the voters, which undoubtedly it does. But that's almost not the question. The question is is it constitutionally compelled? And I don't see how you can say that given the history.

 

Prof. Derek T. Muller:  That it's constitutionally compelled for -- I'm sorry, for the state? I'm not -- [CROSSTALK 00:27:21].

 

Greg Walsh:  I'm sorry. One second. Let me see if the caller [CROSSTALK 00:27:23].

 

Prof. Derek T. Muller:  No, no. I can build out the question.

 

      I think you're right. So the members of the Court were recognizing that it's not that you have to -- that states are forced to take a particular avenue here. And Colorado actually put it very expressly. The question is not, or shouldn't be, "Do electors have the right to cast votes however they want?" Their view is, "What power do the state legislatures have?" And if a state wants to have what they describe as free agents, where they just allow electors to do whatever they want, they can do that. If they want to bind electors, they can do that. If a legislature wants to pick electors itself, it can do that. If they want to delegate it to the presidential candidates, if they want to have a system where you pick them in March as opposed to naming them in October—you still vote in November because Congress says so—they have all kinds of leeway in that appointment in terms of the power about when they do it, about how they go about doing it, and so on.

 

      So it is, at its core, related to this question of state authority. So it can be answered -- if electors have unfettered discretion to cast a vote, well, then, the state lacks the authority over that. But that sort of assumes something about the state authority. On the flip side, if the state has a power to choose the electors -- and this came up at argument in a couple of different respects. Justice Alito asked the hypothetical, "What if we have the people just hold the popular vote and just take a straw poll, and the state legislature chooses electors and says, 'Hey, you're welcome to take the straw poll of the people if you'd like, but this is what the people want.'" You could do it that way. That would be a very low-key approach, a very free-agent approach to this problem. Or, again, you can have sort of hyperregulation and control. In Pennsylvania they have a system where the presidential candidate himself—or herself, last election—gets to name the electors.

 

      So, in Colorado, one of the problems was these were sort of Bernie Sanders delegates to the convention in March 2016 who showed up and named electors, and some of them were quite disgruntled at the end of the day. You don't have that problem if you're in Pennsylvania, and the legislature says, "Yeah, presidential candidates get to name the electors for us." And it's a very straightforward, very direct process, and it's very unlikely that those folks are going to be faithless. So all that is to say there's lots of different ways of thinking about the scope of state authority and the delegations of state authority in this case. I think the justices were spending a significant amount of time struggling through that and trying to figure out exactly what the contours of that might look like.

 

Greg Walsh:  We'll now go to our next caller.

 

Caller 5:  My question is how is this issue squared out between the two parties? Do the Republicans care more about this one way or the other, or do the Democrats, or what?

 

Prof. Derek T. Muller:  On this issue, I think, there's bipartisan opposition to faithless electors. So there is an interesting setup here. Both the Republican National Committee and Democratic National Committee, or at least versions of them—it might have been state parties—filed briefs in Colorado defending Colorado's law because, I think, all of the parties want their electors to be faithful. And this sets up an interesting problem. Well, maybe you don't mind if the other party's electors are faithless, but you want your own electors to be faithful. And it turns out that the parties care far more about their own electors being faithful than the opposing party's electors being faithless.

 

      So, in my view, or from what I've seen in the briefing, the political parties both tend to be strongly supportive of exerting strong control over their electors as much as possible and having them cast votes faithfully.

 

      Now, at the same time, this is an interesting case at least ideologically, now, on the parties' side. The litigation here is being brought by Democratic electors who were planning on casting faithless votes. But there's a number of originalists or originalist scholars who were also drafting amicus briefs and defending the practice of electors being able to cast votes for whomever they wanted, which was something sort of anticipated in Federalist 68, a longstanding practice since the Founding, at least, but occasionally these things have happened, and so on. So it's not the most clean-cut, ideologically salient issue. At the same time, when it comes to the parties' structure, everything I've seen suggests the parties very much prefer the electors to be as faithful as possible.

 

Caller 5:  All right. Thanks.

 

Caller 6:  Let me apologize up front because I may be the only person on the call who doesn't understand this. But, as I understand the factual situation, we have three electors from the State of Washington that wanted to vote for another candidate, Colin Powell, instead of voting for Hillary Clinton. And these Democratic electors somehow felt that this would affect the outcome of the election and that Donald Trump might not get elected. Is that -- what am I missing? How does their voting for Colin Powell affect Donald Trump's election?

 

Prof. Derek T. Muller:  Yeah. So the hope was this; the grand strategy was this in a couple of respects. One is, if a bunch of Democratic electors got together and convinced a bunch of Republican electors to join them, they could maybe all agree on some consensus independent, centrist, third-party candidate, whomever it might be. And, if they could do that, they could all coalesce, and maybe they'd all agree to vote for Colin Powell or John Kasich or whoever it is. But it would require them to get some Republican electors on board with this plan. Now, at the end of the day, only two Republican electors were faithless, both from Texas, one who voted for Ron Paul and another who voted for, I think it was, John Kasich. And so neither voted for Colin Powell.

 

      But the thought was they would create sort of a new coalition of electors. And it would either deprive Donald Trump of a majority and, if that happens, that sends the election to the House of Representatives. The House of Representatives chooses among the top three vote getters, which presumably would be Donald Trump, Hillary Clinton, and maybe this third person, John Kasich, Colin Powell, or whoever it might be. And then the House votes with each state receiving one vote. So Wyoming votes as one; Vermont votes as one; California votes as one. And whoever gets the majority becomes the President of the United States. Or, in the alternative, maybe you can convince enough electors to flip their votes so that John Kasich or Colin Powell wins a majority outright, and the election never has to go to the House. But that was the theory.

 

      It didn't get very far, again, as you saw from the electors. But, again, the plaintiffs point out, listen, there are a lot of electors who might have wanted to cast faithless votes. There are three plaintiffs in this Colorado litigation; two of them felt pressured that they were violating state law and would lose their position, and they voted for Hillary Clinton even though they said they really didn't want to. It's Michael Baca, the third one, who actually tried to vote for John Kasich and was replaced.

 

      So, practically speaking, these Democratic electors would not have been able to turn the election. Their hope was, "If we're going to be faithless," not quite a suicide pact, but "if we're going to be faithless, maybe some others will be faithless, and we can all join together, deprive Donald Trump of the majority, and then somebody else becomes president." But this was something of a long shot in that election.

 

      And, I think, to briefly sum up some of the concerns at oral argument where members of the Supreme Court were saying, "Will this invite chaos in the future elections?" and so on and so forth. Most of the time, the margin of a presidential election is so big that a few faithless electors like this is just a blip on the radar, right? Nobody really notices. In 2000, where George W. Bush wins 271 votes and you need 270 to win, that's a little bit more dicey. And we don't know what's going to happen if the election in 2020 or beyond is extremely close, and a few faithless electors can turn the election.

 

Caller 6:  All right. Thank you.

 

Greg Walsh:  Professor, is there anything you would like to add before we conclude?

 

Prof. Derek T. Muller:  No. I don't think so. The one last point to raise is, you know, this is May 13, and the Supreme Court is going to try to get its opinions out by the end of June. So I don't know how -- I think there's going to be an attempt for some consensus and some brevity in the opinion so that you don't have a lot of sprawling, single, one-offs from different justices if they try to race to the end of the term. I think there was some coalescing around views about some practical approaches to this case. So I think that it's open, but my expectation is that, because we're approaching the end of the term, the Court's going to try to come up with something as clean and straightforward as possible. But, you know, those are famous last words in predictions.

 

Greg Walsh:  It looks like we have one more caller. Do you have time for another question, Professor?

 

Prof. Derek T. Muller:  Sure. Absolutely.

 

Caller 7:  Yeah. I can't resist asking your opinion about something that's been nagging me all week. During these recent arguments where the Court's using a telephone or teleconference technique for oral argument, it seems that Justice Thomas has come out the closet. Do you have any theory on why he's asking questions?

 

Prof. Derek T. Muller:  Well, I think a lot of it -- I mean, his former clerks and he said publicly, you know, he doesn't like the melee that argument presents these days. It's very little arguing from the advocates and very much a fight and a fray among the rest of the Supreme Court. The times he's spoken up in recent years have been times where his colleagues have sort of ended questioning somewhat early and there's been time left. I'm thinking about a Second Amendment issue he raised a couple of years ago shortly after Justice Scalia's death. So I think this format is definitely set up to say, "It's your turn, Justice Thomas. If you have any questions now, you have a few minutes to ask them." Because of that, I think, he just prefers that format and that approach much more. I don't think there's a likelihood the Court's going to continue this, in which case he'll sort of return to the posture he had before, it would be my assumption. But as far as I can tell, I think that's as consistent an explanation as any other that you might get.

 

Caller 7:  Makes sense. Thank you.

 

Greg Walsh:  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.