Chiafalo v. Washington (19-465)

argument 19-465

Chiafalo v. Washington

Supreme Court of the United States 1h 14m 9 speakers 5 chapters transcribed 6 days ago official recording ↗

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What is the central constitutional question about state control of electors?

John G. Roberts 0:00

We will hear argument first this morning in case 19-465, Chiafalo and others versus the state of Washington. Mr. Lessig.

Larry Lessig 0:11

Mr. Chief Justice, may it please this court. The question in these cases is straightforward. Do the states have the power to control through law how an elector may vote? They do not. The ordinary expected meaning of the words of the Constitution against the background of the framers' deliberation make it clear that the states have no such power. But what is also clear is that Washington does not like the Constitution's design. It asks this court to read the word elector as agent, or maybe better, minion. And it declares that the votes electors cast are not, as the Constitution expressly describes them, their votes, meaning the electors' votes, But instead of the votes of the state, Article 2 in Washington's hands effectively gives the states the power to cast votes for president in such manner as the legislature thereof may direct.

Larry Lessig 1:12

But the actual Article 2 does not give the states the power to cast votes. It gives the states the power to appoint electors. And the actual electors that the Constitution creates have a legal discretion, as every elector does. Not an unfettered discretion, as Washington puts it. To the contrary, a completely fettered discretion, just fettered by moral and political obligations, not by legal constraints. Washington's alternative to, quote, vest discretion in citizens rather than electors may be a better plan, at least if part of a coherent change. But the question for this court is not which plan would be better. The question is, which plan is the Constitution's now? And the answer to that question is clear in the Constitution's text.

Larry Lessig 2:06

The states get to appoint, no doubt, but they appoint electors who are then privileged to cast their votes without regulation by the state.

John G. Roberts 2:16

Mr. Lessig, do you object to the pledge itself, assume there's no fine or any other sanction, is simply requiring a prospective elector to take a pledge okay in your view?

Larry Lessig 2:31

Absolutely, Your Honor. A pledge understood the way Ray understood a pledge, having no legal obligation, but a moral obligation, is perfectly fine as part of the appointment power of the state.

John G. Roberts 2:45

Well, then, so the addition of a sanction makes no difference?

Larry Lessig 2:51

No, the sanction makes all the difference. So long as there is not a legal sanction, then a pledge is appropriate. So same in the context, Your Honor, of the speech and debate clause. Of course, you can't punish somebody for a vote in Congress, but there's nothing inconsistent with a speech and debate clause and asking a member to make a pledge. Indeed, states right now ask members to make a pledge as a condition of being a party member.

John G. Roberts 3:20

So if there were a fine of $1, you would say that violates the Constitution, but if it's simply a pledge, no violation at all?

Larry Lessig 3:29

That's right, because a fine is a legal obligation. It crosses the line because the state has no such power to impose such an obligation through law.

John G. Roberts 3:41

So your argument is not that the sanction must have coercive effect. It's simply a If it's only a symbolic requirement, it still violates the law?

Larry Lessig 3:55

No, Your Honor. It's a symbolic requirement. It's, of course, an important moral requirement. It's a moral obligation when you take a pledge. But it can't cross the line and become a legally coercive obligation consistent with the freedom that the Constitution grants electors to vote by ballot.

John G. Roberts 4:15

So by legally coercive, you mean something different than simply coercive. In other words, if you add $1, that becomes legally coercive.

Larry Lessig 4:24

That's right. Just as with the speech and debate clause, if you find a congressperson $1 for his speech or his vote on the floor of Congress, that violates the speech and debate clause. But there's no problem with saying to that congressperson, to be a member of the Republican Party, you must pledge to support the platform of the Republican Party.

John G. Roberts 4:45

Under your view, there would be no way to enforce the popular vote referendum?

Larry Lessig 4:52

The National Popular Vote Compact? Is that what you mean, Your Honor?