[EL] More compelling question raised in the faithless elector oral argument

[Marty Lederman]

Are Hobbits eligible to be (or run for) President?

On Wed, May 13, 2020 at 12:25 PM Eric J Segall <esegall at gsu.edu> wrote:

> That’s funny.
>
> e
>
> Sent from my iPhone
>
> On May 13, 2020, at 12:24 PM, Marty Lederman <
> Martin.Lederman at law.georgetown.edu> wrote:
>
> 
> 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
>>
>>
>>
>> CAUTION: This email was sent from someone outside of the university. Do
>> not click links or open attachments unless you recognize the sender and
>> know the content is safe.
>>
>>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
> CAUTION: This email was sent from someone outside of the university. Do
> not click links or open attachments unless you recognize the sender and
> know the content is safe.
>
>

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200513/4215471b/attachment.html>