[EL] Constitutionality of "advisory vote" for POTUS

[Ilya Shapiro]

I have no idea what the right answer is in these faithless-elector cases, but you certainly can't create contra-textual/originalist rights by "practice."

Ilya Shapiro
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From: Law-election On Behalf Of Eric J Segall
Sent: Wednesday, May 13, 2020 12:19 PM
To: Pildes, Rick <rick.pildes at nyu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>; Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Constitutionality of "advisory vote" for POTUS

Very curious what the textualists on this list think. We can argue many things but we have to agree that the right to vote for the POTUS is not in the text, the understanding in 1788 was that the states would totally control that process, and no formal amendment has changed all that.

Best,

Eric
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Sent: Wednesday, May 13, 2020 11:59 AM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>>; 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: Re: [EL] Constitutionality of "advisory vote" for POTUS


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?









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Marty Lederman

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