[EL] Constitutionality of "advisory vote" for POTUS

[Pamela S Karlan]

Dear Marty,

Under Bush v. Gore, one might argue that that would be fine so long as the law was clear.  If it were clear, then the advisory process wouldn’t be a vote in the constitutional sense any more than if the state conducted a public opinion poll.

The one caution I’d add is that there’s at least a colorable argument that the longstanding policy of having popular election may have created a fundamental liberty interest in casting a vote in the presidential election process.  I sketch out this issue in Unduly Partial: The Supreme Court and the Fourteenth Amendment in Bush v. Gore, 29 Fla. St. U. L. Rev. 587, 597-98 (2001).

Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Co-Director, Stanford Supreme Court Litigation Clinic
Stanford Law School
559  Nathan Abbott Way
Stanford, CA 94305
karlan at stanford.edu
650.725.4851

On May 13, 2020, at 8:04 AM, Marty Lederman <Martin.Lederman at law.georgetown.edu> wrote:


Justice Alito just asked an interesting question in the faithless elector argument.  Perhaps there's an obvious answer.

Could a state legislature pass a law providing that its Electors, chosen by the legislature itself, would have absolute discretion to vote for President, and that the popular vote on election day therefore would merely be "advisory" to such electors, or would that violate the citizens' right to vote?




--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

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