[EL] Constitutionality of "advisory vote" for POTUS

Wed May 13 10:39:05 PDT 2020

But is there a case in which a substantive due process right was declared *in
opposition* to Constitutional text?

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*

On Wed, May 13, 2020 at 9:36 AM Pamela S Karlan <pkarlan at stanford.edu>
wrote:

> That’s what I was alluding to in my earlier email.  The question whether
> the right to participate in a vote for a state’s electors has become
> fundamental is, I think, an open one.  The claim won’t satisfy people who
> reject the Harlan view from Poe v. Ullman, of course, but for people who do
> find his formulation persuasive, it might be enough.
>
> Pamela S. Karlan
> Kenneth and Harle Montgomery Professor of Public Interest Law
> Co-Director, Stanford Supreme Court Litigation Clinic
> Stanford Law School
> 559  Nathan Abbott Way
> Stanford, CA 94305
> karlan at stanford.edu
> 650.725.4851
>
> On May 13, 2020, at 9:30 AM, Franita Tolson <ftolson at law.usc.edu> wrote:
>
>  *stares in substantive due process*
>
> Sent from my iPad
>
> On May 13, 2020, at 9:22 AM, Ilya Shapiro <IShapiro at cato.org> wrote:
>
> 
>
> 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
>
> Director
>
> Robert A. Levy Center for Constitutional Studies
>
> Cato Institute
>
> 1000 Massachusetts Ave. NW
>
> Washington, DC  20001
>
> tel. (202) 218-4600
>
> cel. (202) 577-1134
>
> ishapiro at cato.org
>
> Bio/clips: https://www.cato.org/people/ilya-shapiro
> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.cato.org%2fpeople%2filya-shapiro&c=E,1,aNn7dSkXtFzZ9qbsaPUW8iWfasYYLK6d9M07_Zx8qm6ETOJCtN2g6xpGOjHpzwWBEvJlqMYeDHM2d7Z5U1b4BbwyxnaM1kwRbB5fXHYi&typo=1>
>
> Twitter: www.twitter.com/ishapiro
>
> SSRN: http://ssrn.com/author=1382023
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fssrn.com%2fauthor%3d1382023&c=E,1,ZtJ_y8jZYlOzBls9tEThBXmWLrorAZoUPNDv--nvMdXx7aDnGXRQj1ggPqQ1wuIvGzSVmiUidxdH1qwaNEV67RhMP-hgEzj198J6qkwDepYFs6_vu4nTXSNN&typo=1>
>
>
>
> *Cato Supreme Court Review*:  http://www.cato.org/supreme-court-review
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.cato.org%2fsupreme-court-review&c=E,1,f0d0z9OuB2JPG_X83MNh5Bd11UrV0JT_mXB2a_7JHoCUb2LehlzTZI6kh1-iFme8bpyVB6YcxqlxAVFw1OE3BydG43VsZd0RNGozMEL3Rcqo&typo=1>
>
>
>
> Watch our 18th Annual Constitution Day Conference, Sept. 17, 2019:
>
> https://www.cato.org/events/18th-annual-constitution-day
> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.cato.org%2fevents%2f18th-annual-constitution-day&c=E,1,IwpuR5kkzlHXoGO3PFRwolqb_ZYq-nBvDSe8AbdbXdzXreoa68456I6WdUHtwqwsIVXbMAt2xf6K0Rv_NLzm3TWT6IKadovyXXzthL-xkA,,&typo=1>
>
>
>
> *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> 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
> <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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