[EL] Constitutionality of "advisory vote" for POTUS

Wed May 13 10:56:41 PDT 2020

Hi Mark,

If I read your email correctly, you are saying that there is a conflict between the text of Article II, Sec. 1, which gives state legislatures plenary authority to select the method of choosing electors, and a federal right to vote, which would require states to allow voters to choose the electors even in this context.  For me, this is really a question of reconciling the rest of the constitution (and all of the subsequent amendments that deal with voting) with the original Madisonian document; on that view, it is not a foregone conclusion that a right to vote would be in opposition to the constitutional text (after all, Article II does not actually say that this power is “plenary,” right?).

In other words, the real question is to what extent did later amendments to the Constitution, amendments that substantially broadened the franchise and access to the political process, alter the state legislature’s prerogative under Article II?   I think the answer to this is “these amendments changed a lot” such that I don’t think that there would be an obvious conflict with the text if Pam is right.  Happy to say more, but writing calls.

Thanks,

Franita

Sent from my iPad

On May 13, 2020, at 10:39 AM, Mark Scarberry <mark.scarberry at pepperdine.edu> wrote:

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

Mark

[Pepperdine wordmark]
Caruso School of Law

Mark S. Scarberry
Professor of Law
mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>

On Wed, May 13, 2020 at 9:36 AM Pamela S Karlan <pkarlan at stanford.edu<mailto: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<mailto:karlan at stanford.edu>
650.725.4851

On May 13, 2020, at 9:30 AM, Franita Tolson <ftolson at law.usc.edu<mailto: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<mailto: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
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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<mailto:rick.pildes at nyu.edu>>; Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>>; Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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
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From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Sent: Wednesday, May 13, 2020 11:59 AM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>>; Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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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