Colorado Dept. of State v. Baca (19-518)

argument 19-518

Colorado Dept. of State v. Baca

Supreme Court of the United States 1h 1m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What constitutional authority allows states to remove or replace electors?

John G. Roberts 0:00

We'll hear argument next in case number nineteen five eighteen. Colorado Department of State versus Michael Baca. I note at the outset that Justice Sotomayor is recused in this case. General Weisser.

Phil Weiser 0:16

Thank you, Mr Chief Justice, and may it please the court. The Constitution authorizes states to use their plenary authority to remove a bribed elector, one who engages in a rebellion, or one who would perpetrate a bait and switch on the people of their state by voting contrary to a binding pledge. By contrast If a state wishes to treat electors as free agents rather than as proxy voters, It is free to do so. In short, States determine how to select electors. and ensure that they meet the relevant requirements and perform their duties as assigned. This means, under Green, that states can oversee bribery. As an incident As a power to appoint. This must include the power to remove an elector without requiring a full criminal trial.

Phil Weiser 1:07

Under my friend mister Lessig's position, as a practicality, bribe electors would cast ballots. And illegal vote. In this case The state prevented Mr Baca from casting a legal ballot. Just like it's an illegal ballot if you don't sign it here in Colorado. As this court explained in Ray, the purpose and history of the twelfth amendment. reflected the reality that electors acted as pledged agents for their political parties. And the history of such pledges should be given great weight. As to Justice Ginsburg's point about the importance of enforcing a pledge requirement, It's worth noting people rely on such pledges, which are taken voluntarily, and as Justice Glee explained in the Inter Tribal Council case.

Phil Weiser 1:51

Voting requirements would be of little value if not enforced. In the almost seventy years since Ray, states have continued to enact laws to enforce elector pledges. Congress has consistently deferred to the state's plenary authority and no court other than the tenth circuit below has invalidated a pledge binding law. Mr Chief Justice, I would welcome your questions.

John G. Roberts 2:14

Uh my first question is to um uh ask if there is anything that General Purcell said on behalf of the state of Washington with which you disagree.

Phil Weiser 2:26

Thank you so much, Mr. Chief Justice. I would only add a slight wrinkle. He did indeed endorse our tenth amendment argument. What I would say on that is the tenth amendment is an important interpretive principle. Because the constitution gave the states authority over elections, the tenth amendment underscores that point.

John G. Roberts 2:44

Would you state for me uh exactly what you think the limits on the state power to replace uh electors are?

Phil Weiser 2:54

Your Honor, here I would echo my colleague from Washington. It governs Whether or not an another constitutional provision is violated. The fourteenth amendment quite notably means a state could not remove an elector based on race or religion. Also the qualifications clause means you can't remove electors for the purpose of adding qualifications for who can be president.

John G. Roberts 3:21

So if you uh selected electors, uh the one of the requirements is they uh had to be relatives of the legislators, that would be all right.

Phil Weiser 3:34

Your honor here in Colorado we picked electors in nineteen seventy six. The state legislature did it directly. As long as that choice doesn't violate a constitutional provision, they can pick whoever they want.

John G. Roberts 3:46

What if uh the rule is, you know, the electors are chosen pursuant to slate? uh but anyone uh who says uh anything uh uh disloyal to the state between the time where selected uh and the time they cast their vote will be uh replaced.

Phil Weiser 4:07

Your Honor, as My colleague from Washington noted once people are voting to make a choice People have a right for their bowels to be counted. And here, in the hypothetical you just noted, the ballots of people would be invalidated after the fact. That implicates Gray versus Sanders and this court's line of right to vote cases.

John G. Roberts 4:30

Any other limitations on the power of the state? What about the uh uh bribery cases that have been or bribery hypotheticals that have been discussed?

Phil Weiser 4:42

Thank you, Mr Chief Justice.