[EL] Constitutionality of "advisory vote" for POTUS

[Marty Lederman]

Speaking of which, Eric, Justice Alito said this just a few minutes ago
(roughly--the transcript isn't yet up):

"We have to interpret the Constitution based upon what it means, without
regard to consequences.  But let me ask you a series of questions about the
consequences of your position."

On Wed, May 13, 2020 at 12:18 PM Eric J Segall <esegall at gsu.edu> wrote:

> 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> on
> behalf of Pildes, Rick <rick.pildes at nyu.edu>
> *Sent:* Wednesday, May 13, 2020 11:59 AM
> *To:* 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
>
>
> 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>
> *Cc:* Election Law Listserv <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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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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