[EL] Constitutionality of "advisory vote" for POTUS

[Mark Scarberry]

McPherson v. Blacker came very close to answering that question, by holding
that district-by-district choice of electors was constitutional under the
original text of the Constitution and, if I remember correctly as I sit
here in an isolated haze, under the 14th Amendment.

[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 9:34 AM Chambers, Hank <hchamber at richmond.edu>
wrote:

> Any thoughts on whether a Constitution-based individual right to vote for
> president should require states do winner-take-all electoral vote
> allocation?
>
> -Hank
>
> Henry L. Chambers, Jr.
>
> Austin E. Owen Research Scholar and Professor of Law
>
> University of Richmond School of Law
>
> 203 Richmond Way
>
> Richmond, Va. 23173
>
> (804) 289-8199
>
> hchamber at richmond.edu
>
>
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Eric J Segall <esegall at gsu.edu>
> *Sent:* Wednesday, May 13, 2020 12:18 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]
> *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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