[EL] Constitutionality of "advisory vote" for POTUS

[Mark Scarberry]

Prior to the 27th Amendment, Senators were not popularly elected. Yet some
states held advisory votes.

Here is a textual analysis (nothing original, I'm sure):

With regard to presidential electors, consider the original constitutional
text. Article II, sec. 1, cl. 3 gives each state legislature the power to
decide the manner by which the state appoints its electors. The power seems
to be plenary;  the Court recognized in the Palm Beach County case that the
state legislatures retain that plenary power (though the Court also
recognized in McPherson v. Blacker that it must be the "State" that
appoints the electors). Nothing in the text limits that power so that
direct appointment of electors by the state legislature would be precluded.
Nothing in the text prohibits a state legislature from asking the voters
for a recommendation by way of an advisory vote, as part of the way in
which the electors are appointed.

There is a potential problem with the date of appointment of electors.
Congress has the power to determine the time of "Chusing" of the electors
under II, 1, iv. That time has been set by statute (election day). It isn't
clear to me how a state legislature could choose electors after that date,
which would be needed if the election is only advisory. A state legislature
would have to provide for an earlier advisory vote. I think that would be
permitted (in fact I think Akhil and Vik Amar have argued that it would
be), because the advisory vote would not actually be a vote for electors
per II, 1, iv, and because it doesn't seem that Congress has a right to
overrule the decision of state legislatures to hold such an earlier vote.

The text of section 2 of the 14th Amendment does not grant the people the
right to vote for presidential electors. Note that it includes "Judicial
officers of a state" in the list of officers, along with presidential
electors, with respect to which there was to be a Congressional
representation penalty if a state denied or abridged the voting rights of
the (unfortunately limited) category of citizens listed in the section. No
one would argue that the 14th Amendment requires election of state judges
by popular vote. None of the other amendments provides explicitly for a
right of voters to choose presidential electors. Repeal by implication of
explicit textual provisions -- in this case, the explicitly provided power
of state legislatures to determine the manner by which states appoint their
electors -- should not be presumed.

The drafters of the original text and of the amendments knew how to provide
for election by popular vote if that was to be required. Consider the
explicit provision in the original text providing for popular election of
members of the House, and the similarly explicit provision in the 17th
Amendment with respect to election of Senators.

The Court recognized in McPherson v. Blacker that historical practice
cannot deprive state legislatures of the power  given by the text of the
Constitution to determine the manner by which a State appoints its
electors. (But, as noted above, it still must be the State that appoints
them; the key issue in McPherson was whether district-by-district choice of
electors by popular vote was an appointment of electors by the "State." As
Dan Lowenstein and I have pointed out, that seems to be one of the fatal
flaws on the National Popular Vote Compact."

Mark


On Wed, May 13, 2020 at 9:14 AM Guy-Uriel E. Charles <charles at law.duke.edu>
wrote:

> 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> 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
> <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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