[EL] Constitutionality of "advisory vote" for POTUS

[Guy-Uriel E. Charles]

Agreed. The implications of Washington’s and Colorado’s position almost gets there. The core of their argument is that constitutional practice trumps structure/text.  If the states win, I don’t think it’ll be too much of a jump to say that the historical practice of states providing for a popular vote creates a constitutional right.

On May 13, 2020, at 11:59 AM, Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:

As a practical matter, no State would do this, of course.  But as a doctrinal matter under existing law, the Washington SG and the Colorado AG, probably answered this question correctly, as undemocratic as the answer is:  there is no affirmative constitutional right to vote for president (as an originalist matter, and modern doctrine has not yet gone so far as to call this understanding directly into question).  If a State did actually do this, though, one would hope the Court would conclude that the historical practice of popular voting is so deep, long-standing, etc. that the Constitution is now best understood to require a popular vote.  But it would take a change in doctrine to get there.

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Marty Lederman
Sent: Wednesday, May 13, 2020 11:02 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Constitutionality of "advisory vote" for POTUS

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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