The Supreme Court is hearing an important case on the Electoral College, and Independence Institute scholars have been involved in filing two “friend of the court” briefs.
The case addresses whether state legislatures may direct how presidential electors vote. This question has taken on great urgency as “progressive” state legislatures increasingly meddle with free elections. For example, the California and Colorado legislatures have rigged voting rules in ways that encourage ballot harvesting and other abuses. And the California legislature recently tried to deny primary election voters the right to vote for President Trump by passing a law banning from the ballot any candidate who failed to disclose his tax returns. Fortunately, the California Supreme Court unanimously held the law unconstitutional.
The Founders likewise would have considered unconstitutional those state laws telling presidential electors how to vote—even when the laws prescribe that the electors must vote for the person winning a state plurality. Although the overwhelming majority of electors vote as they announced they would, there are some cases in which they need to exercise discretion: A presidential candidate may die or become incapacitated in the six weeks between the popular election in early November and the Electoral College vote in December. (This has become an increasing possibility as presidential candidates become older.) Also, new information may emerge between the time the of the popular vote and the Electoral College vote. (This is also an increasing possibility as new election laws encourage people to vote early and new methods of communications produce more information.)
Or the candidate to whom the overwhelming majority object may have eked out a tiny plurality in a multi-candidate election. (This is how dictators and would-be dictators are often elected; Adoph Hitler, for example, became Chancellor of Germany after winning only 33% of the vote. Obviously, the world would have been better off if the 67% of Germans who did not vote for Hitler could have denied him election.)
Rob Natelson, the Independence Institute’s Senior Fellow in Constitutional Jurisprudence, was the principal author of a winning brief on this case in the U.S. Court of Appeals for the Tenth Circuit in Denver. Research Director Dave Kopel (who edited that brief) and attorney Joseph Greenlee have re-worked it for the Supreme Court. You can read II’s SCOTUS brief here.
Rob Natelson is also the principal author of another brief in the case. It addresses the technical legal area of “federal functions.” It was edited and submitted by Rita Dunaway, a lawyer for the non-profit group Citizens for Self-Governance.
A federal function is a job the Constitution gives directly to some entity or person not part of the U.S. government. Examples of federal functions are (1) voting by presidential electors, (2) a state legislature’s selection of representatives (commissioners) to a convention for proposing amendments, (3) a state legislature ratifying a constitutional amendment or applying for an amendments convention, (4) governors calling elections to fill congressional vacancies, and (5) a state drawing lines for congressional districts.
Each of these functions follows different rules. Rob’s and Rita’s brief helps the justices understand how those rules differ. You can read it here.
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