Two cases before the supreme Court give enough evidence to prove beyond a shadow of a doubt that our legal education system is an utter failure when it comes to the supreme law of the land. The arguments are so bad I thought my head was going to explode!
Presidential Elections
For those of you who are as unfamiliar with how the President of the United States is elected as those on the bench are, here is a quick primer.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
U.S. Constitution, Article II, Section 1, Clause 2
There are two points in this clause salient to the cases we are about to discuss:
- Each state appoints electors.
- The legislature of each state determines the manner in which those electors are appointed.
Clause 3 of Article II, Section 1, along with the Twelfth Amendment, goes on to describe where the electors meet and how they will vote (more on this later).
While I have a lot of issues with how the legislatures of the several states have determined to appoint their electors, that is not the question here. Instead, I will focus on the arguments made before the court.
The Cases
The cases argued before the court were Colorado Department of State v. Baca and Chiafalo, Guerra, and John v Washington. Both cases involved the question of whether the states can punish electors who do not follow their pledge (referred to as “faithless electors”). While there was a lot of discussion about prior cases and hypothetical situations, the basic question was: Do the states have the authority to ensure that an appointed official keeps the pledge made to the people of their state?
MR. LESSIG: … But then you can look at it from the other side and ask, as an elector who is given an obligation to vote by ballot, does that obligation entail a protection from legal regulation? And we believe, just as the Speech and Debate Clause does, it creates an immunity from being punished for how one votes.
Chiafalo, Guerra, and John v Washington
Much of the argument from the Washington case revolved around the “Speech and Debate Clause”.
… They [the Senators and Representatives] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
U.S. Constitution, Article I, Section 2, Clause 1
First notice, the Speech and Debate clause only applies to members of Congress. There are two important points to recognize here: Members of Congress are elected while presidential electors are appointed. Yes, today the electors are appointed based on a popular vote within the state, but that does not change the fact that they are appointed. To compare a presidential elector with a Congressperson is comparing apples to oranges. There is no constitutional requirement that the electors be elected, there is no power delegated to the elector except to vote, and while Congresspersons are explicitly given immunity from questioning anything they say in their houses, no such protection is granted to electors. In fact, the very idea that someone can be hired to perform a certain action yet not be punished for failure to do so seems, as Justice Ginsburg put it, “hard to understand”.
JUSTICE GINSBURG: It’s somewhat hard to understand the concept of something I am pledged, bound to do, I have made a promise to do something, but that promise is unenforceable.
MR. LESSIG: I understand, Your Honor. And — and it is — it is — it’s difficult until we recognize how familiar it is. … And we can see that in the context of Congress again. Again, there’s no problem with requiring a member of the Republican party to pledge to support the Republican party as a condition of being a candidate for Congress. But we understand the Speech and Debate Clause to say you can’t punish them for their vote. And the pledge is not inconsistent with the Speech and Debate Clause.
Chiafalo, Guerra, and John v Washington
But the Speech and Debate Clause does not apply to electors. Just as any appointed official can be removed from their position if they fail to do what their appointer says, why cannot an appointed elector? If the person or entity making the appointment wishes to allow the person appointed to act as a free agent, they can. But if they wish them to act as a proxy, there needs to be a way to hold them accountable. Imagine if the President appointed an ambassador to the U.N. with instructions on how to vote on certain issues. If the ambassador failed to vote according to their commission, or even announced such intention, the President could certainly recall them. Then why cannot an elector, who has been appointed to fulfill the commission of voting for the candidate they pledged to, not be recalled for the very same reason? This was investigated in the Colorado v. Baca case.
JUSTICE KAVANAUGH: Thank you, Chief Justice.
Good morning, General. What is the purpose of having electors?MR. WEISER: Thank you for that question, Justice Kavanaugh. When electors are
set up in the constitutional design, that allows for states to make a choice. Electors can either vote as proxy voters on behalf of the public, as we do here in Colorado, or they can be free agents.By having this structure uniform across the several states, you give states the ability to choose which model they want.
Colorado Department of State v. Baca
As Mr. Weiser noted, the states were given electors to allow them to have a choice. Their legislatures can choose electors in any manner they wish. They could choose electors based on political parties, familial relationships, or “enie, meanie, minie, mo” if they wanted. The legislatures of the several states can choose electors to act as free agents, or as proxies for someone else. The states have chosen to appoint electors as proxies for the voice of the people expressed by popular vote. To act against one’s commission is not only a violation of their word, but a corruption of the process and a usurpation of the power vested in the legislatures of the states.
If the legislatures of the several states wanted the electors to act as free agents, then they would have the elector’s name on the ballot, not the candidate they pledged to support. How just is it to the people of the several states for them to vote for the appointment of an elector who promised to vote for one candidate, only to have that elector vote for another? And how could the people determine the faithfulness of an elector when they are not given the opportunity of knowing who that elector is?
The Twelfth Amendment
Both cases made reference to the 12th Amendment.
MR. HARROW: Justice Kavanaugh, the political parties provide the context for nominating electors and the appointment of electors. But they — the fact that there are political parties now and were emerging political parties when the Twelfth Amendment was passed in 1803 doesn’t affect that the word “elector” remains in the Constitution and that electors are people who vote, and all of those words and all of those structural principles mean that they can vote with discretion.
Colorado Department of State v. Baca
But there is nothing in the founding to suggest that the framers imagined the states administering the Electoral College. That’s why the states don’t appear in the Twelfth Amendment at all.
Mr. Lessig, Chiafalo, Guerra, and John v Washington
I can’t tell if this line of response is simply legal misdirection or simple ignorance and folly. The 12th Amendment isn’t about electors, what their appointment means, or whether they can be held to their commission, it simply changes the way the Vice President is elected. Article II, Section 1, Clause 3 stated that the Vice President was the first runner-up in the Presidential election. This caused quite a problem for our second President, John Adams, when his Vice President, Thomas Jefferson, was from the opposing party. To avoid such conflicts in the future, it was decided that there would be two votes, one for President and another for Vice President. And yes, Mr. Lessig, the states are not mentioned, because the 12th Amendment superseded a portion of Article II, Section 1. To read the 12th Amendment outside of its context is foolishness as best.
Twentieth Amendment
More recently, the Twentieth Amendment’s framers, when they analyzed these
Mr. Harrow, Colorado Department of State v. Baca
contingencies, recognized even 150 years after the framing that electors still had discretion and electors could and should use it in the case of death of a candidate. This shows that, given the current system of presidential selection by
an Electoral College, there must be times when electors and only those electors are best placed to act in the interest of country.
I read this over and over again and could not make sense of Mr. Harrow’s argument. You see, apparently unlike Mr. Harrow, I’ve read the 20th Amendment. So I know that it has nothing to do with electors.
Section 3
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Section 4
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
U.S. Constitution, Amendment XX,
I don’t know which disturbs me more: That such a ridiculous argument was made, or the fact that we have not challenged it.
Conclusion
Reading the arguments in these two cases gave me a headache. I wanted to believe that the supreme Court only took the case to overturn a horrendous decision by the Tenth Circuit. But after reading the questions from the justices, I can see that was only wishful thinking. These arguments brings me to two definite and concerning conclusions.
First, the American legal education system has failed. I’m not saying that there aren’t good and honest attorneys out there, but the very idea that attorneys can bring a case this far with such ridiculous constitutional arguments should be disturbing to all. If an argument that an appointed Presidential elector should be protected by a clause that specifically applies only to Senators and Representatives can stand, that what good is the Constitution? Or any law for that matter? If the idea that the 12th Amendment mentions where and for what offices the electors vote for can be construed to place them above those who appointed them, how can anyone expect to get a fair and just trial in any court?
That leads to my second conclusion. There is a very good reason why the framers of the Constitution did not give the courts final say on what the Constitution means. As parties to the compact that is the Constitution, it’s the states who determine what it means and defines the boundaries for their creation. Since the Constitution did not give the courts the authority to set the meaning of the Constitution, it remains with the states.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Constitution, Amendment X
Regardless of what these “legal eagles” have been taught, they are not supreme over all, but only the supreme and final court. The Constitution alone remains supreme. That includes the 10th Amendment and the limitations on government it enforces. If this court leaves the opinion of the Tenth Circuit in place, it should be proof positive that the entire judicial branch has been corrupted, should not be trusted, and should be replaced with people who will uphold their oath to support the Constitution. I think it’s way past time we get our elected agents to do their jobs and look into the extremely bad behavior of these so called “justices”.
