Last month, the Supreme Court heard oral argument (virtually) in two "faithless electors" cases, Chiafalo v. Washington and Colorado Department of State v. Baca.  Presidential electors who wished to vote in 2016 for persons other than Hillary Clinton, who won the popular vote in both states, were sanctioned by the states – a $1,000 fine for the Washington electors and removal for the Colorado electors.  These cases present interesting constitutional, jurisdictional, and legal policy questions, and the justices seemed to consider them close cases during oral argument.  Part I featured some highlights from arguments presented to the Court by amici, and this post will focus on oral argument and the analysis of the case.

Amy Howe described the basic arguments made by both sides:

Six presidential electors, who hail from Washington and Colorado, argue that the Founding Fathers didn’t want electors, who are part of the Electoral College that meets to formally elect the president after voters cast their ballots, simply to rubber-stamp the popular vote. Instead, the electors argue, the Constitution gives them the right to make their own decisions. The states say that they have the right both to appoint and to control their electors; allowing the electors to function as free agents, they contend, could lead to chaos in presidential elections. After over two hours of debate today, the justices seemed to regard the issue as a close one, but it appeared that concerns about the possibility of such chaos could tip the balance in favor of the states.

After noting that questions about the Tenth Amendment played an interesting role during oral argument, Prof. Derek Muller outlined several themes from the argument:

Limiting principles. It’s hard to overstate how many times the justices asked either side about limiting principles—do electors have unfettered discretion? Can states condition electoral appointments however they want? Both sides continued to exert fairly maximalist interpretations, in my view, rather than a claim more closely hewing to the facts presented. That said, it’s in part because the justices are looking for larger principles. But the frustration was palpable. Chief Justice Roberts asked about casting a vote for a giraffe, and Justice Thomas about a vote for Frodo Baggins. Pressing Washington about the limits of its power, claims like “the Equal Protection Clause” and the like were the boundaries. It’s hard to know if either side made much headway here.

Bribery. Professor Lessig made an important—and, I’m not sure entirely necessary—claim during argument, one that multiple justices later seized upon. If an elector was bribed, could that elector be removed? Only after a criminal conviction, Professor Lessig noted. That seemed a bridge too far for many members of the court, who seemed concerned that a bribed elector could still vote if the wheels of justice hadn’t moved swiftly enough.

Manufactured case. The justices at a few points wondered about Baca in particular as a manufactured case. Justice Breyer pressed both sides on the claim that Section 1983 did not allow a state to be sued, so why should a court hear the case? Both sides argued it was non-jurisdictional and how they wanted to strategically present the case. Justice Alito went a step farther, questioning Professor Lessig’s motivations in helping invite chaos in the 2016 presidential election.

Pragmatism. Many justices—particularly Justices Breyer, Alito, and Kavanaugh, but also in strains of Justices Kagan and Gorsuch—echoed practical concerns of two kinds. First, if a judicial decision would render significant uncertainty or unpredictability, perhaps that decision should not be issued—as Justice Kavanaugh put it, the “avoid chaos” theory of judging. Second, in the absence of very clear guidelines from the Constitution, perhaps the courts should just defer to the state judgment, which sometimes binds electors and sometimes doesn’t. Justice Kagan openly floated this possibility, as she seemed unconvinced by either textual or historical arguments, suggesting deference would be warranted.

Prof. Josh Blackman noted one potential problem with serious implications.  These cases may have been brought in such a way as to lack a cause of action:

I don't have any strong opinions on whether Article III standing is present in Baca. But there is another, non-jurisdictional problem. Baca sued a state under Section 1983. Section 1983 permits suits against persons; but it does not permit suits against states. Usually, the state would move to dismiss such a suit on those grounds. But–for reasons I don't fully understand–Colorado has waived that argument. . . .

Breyer suggested that this case could amount to an advisory opinion:

I mean, can the parties get that advisory decision by simply saying: Oh, we waive all the jurisdictional problems or all the non-jurisdictional problems, all the problems that say this statute doesn't apply? . . .

Here, there is a plain and obvious 1983 problem. Both parties want to maintain the case to get a ruling on the merits. There is not adversity; there is complicity. . . . I agree with Justices Breyer and Gorsuch. The Court should not entertain issues with obvious, non-jurisdictional defects, simply because the parties want a ruling on the merits.

This is an important decision that will have an impact not only on the 2020 presidential election but also potentially on other areas of election and constitutional law.  A decision, which as Prof. Blackman noted could be a DIG (dismissed as improvidently granted), is expected by the end of this month.