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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. What is right

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Speaker 1: and what is wrong when it comes to the way

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Speaker 1: members of the electoral college vote. There are laws prohibiting

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Speaker 1: members of the electoral college from voting their conscience rather

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Speaker 1: than the presidential candidate who won their state. But the

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Speaker 1: electoral college is a sore topic for a lot of

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Speaker 1: people after recent conflicts between the popular and electoral vote,

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Speaker 1: and this appears to be headed to the U. S.

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Speaker 1: Supreme Court. Joining us now is Bloomberg Law Supreme Court

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Speaker 1: reporter Kimberly Robinson to help us understand how our electoral

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Speaker 1: process works. Kimberly, on the one hand, we've got a

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Speaker 1: federal appeals court that says states can't remove presidential electors

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Speaker 1: for rogue votes, and now a federal appellate ruling that

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Speaker 1: splits that and says faith faithfless electors can be sanctioned. Well,

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Speaker 1: that's right, and so that's significant because, um, while the

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Speaker 1: those rulings affect only those particular states, it sets up

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Speaker 1: a clash that could be heard by the U. S.

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Speaker 1: Supreme Court to affect all of the states. Um, where

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Speaker 1: these laws are in effect. Well, is this sort of

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Speaker 1: piece meal now I sense that this is a state

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Speaker 1: by state question or maybe not. Well, it can proceed

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Speaker 1: that way. Often the way that these disputes land in

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Speaker 1: the Supreme Court is if the lower courts do tend

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Speaker 1: to disagree on an issue. So the thinking that goes

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Speaker 1: that if every court to look at this issue agrees,

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Speaker 1: then there's no reason for the Supreme Court typically to

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Speaker 1: step in. But it's when you have these splits among

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Speaker 1: the lower courts that it might be time for the

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Speaker 1: justices to get involved. Okay, now, so far, uh, none

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Speaker 1: of these sort of rogue voters have really swayed the

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Speaker 1: outcome of an election, not a presidential election. Um. There

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Speaker 1: has been on the vice president, but that was a

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Speaker 1: long long time ago, and it is important to emphasize

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Speaker 1: that so far this hasn't really been a big problem.

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Speaker 1: There's been fewer than a hundred and seventy of these

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Speaker 1: so called faithless electors in our history. Um. But we

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Speaker 1: did see a large number of them in the presidential

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Speaker 1: election of and we could expect to see more of

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Speaker 1: them as uh discontent with the electoral college growth. Now,

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Speaker 1: when they went their own way, so to speak, Uh,

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Speaker 1: did they any of them argue that they had the

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Speaker 1: right to or did did they realize that they were

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Speaker 1: perhaps breaking the law? Well, that that's very much the issue.

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Speaker 1: And so um, these individuals who are the electors say that, Um,

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Speaker 1: they may have pledged to vote for a certain individual,

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Speaker 1: but until they do actually make their vote, there in

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Speaker 1: titled to change that vote contrary to state law. Um.

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Speaker 1: It's not always a state law. Sometimes it's a personal

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Speaker 1: oath that they that they make. Um. And so you know,

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Speaker 1: the issue really varies state by state. But the idea

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Speaker 1: of whether or not it's true that they must be

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Speaker 1: bound by whatever law it is, um, it was one

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Speaker 1: that will be common if the Supreme Court decides to

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Speaker 1: take up the issue. Do me a favor and take

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Speaker 1: me back to Civics class here a little bit, uh,

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Speaker 1: and explain to me how the popular vote for president

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Speaker 1: and vice president uh is actually a vote for this

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Speaker 1: slate of electors. Right, so the popular vote is really

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Speaker 1: picking who are going who your electors are going to

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Speaker 1: be voting for who those electors are going to be.

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Speaker 1: Depending on which state you're in, they're about five hundred

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Speaker 1: and thirty eight. Well, not about There are five thirty

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Speaker 1: eight electors, um, which generally follow about the number of

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Speaker 1: delegates and UM from each congressional del lillegation in the states,

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Speaker 1: plus a couple more for Washington, d C. And you know,

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Speaker 1: in most places, uh, the winner of the popular vote

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Speaker 1: in that state will get all of the votes from

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Speaker 1: the electors in that state, with a couple of exceptions. Um.

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Speaker 1: But that's how the popular vote actually plays into the

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Speaker 1: election of a president. They're not voting directly, they're voting

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Speaker 1: for the slate of electors, as you said. Now, I

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Speaker 1: note in your story on the terminal, UH, a line

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Speaker 1: that says more than half of the states and d

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Speaker 1: C have laws requiring electors to vote a certain way.

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Speaker 1: How how is it that some do when some don't. Well,

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Speaker 1: so the constitution generally leaves it up to the states

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Speaker 1: to decide how it is that they want to set

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Speaker 1: up the election for federal office. Now Congress can step

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Speaker 1: in and say, oh, no, you've got it all wrong,

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Speaker 1: but they haven't. So far on the electoral college. And

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Speaker 1: so that's why we see, um the difference between some

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Speaker 1: states requiring um that that they are electors vote this

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Speaker 1: way and other states um requiring an oath or having

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Speaker 1: that be the general practice. Wouldn't you think there would

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Speaker 1: be one rule though, for an entire presidential election that

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Speaker 1: you know, you guys gotta stick by this or you don't. Well,

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Speaker 1: you know, you would think that might be the case.

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Speaker 1: But that's not the way that the Framers set up

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Speaker 1: the constitution. UM. As I said. They they said that

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Speaker 1: Congress can kind of have a veto over the laws

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Speaker 1: that the individual states put in place for federal elections,

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Speaker 1: but usually it's left to the states. And that's why

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Speaker 1: we see not just different rules with regard to the

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Speaker 1: electoral college, but different rules with regard to registration of

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Speaker 1: voting or voter ideas or all these other issues that

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Speaker 1: are cropping up state by state. So, UM, while it

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Speaker 1: may seem like we have one presidential election, we really

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Speaker 1: have a lot of many elections going on. And what

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Speaker 1: happened in was that some of these electors uh went

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Speaker 1: rogue if you will, and we're basically removed from office

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Speaker 1: and their votes were canceled. Well, it again, it really

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Speaker 1: varies state by state because of these different rules. So UM,

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Speaker 1: in the case that was most recently decided out of Colorado,

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Speaker 1: that's what happened. The individual elector was removed from office

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Speaker 1: before they could cast their votes, and other electors who

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Speaker 1: said that they didn't want to vote for the popular

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Speaker 1: winner in Colorado, who at that time was Hillary Clinton, UM,

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Speaker 1: said that they were scared that they would be removed

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Speaker 1: from office, and so they went ahead and voted the

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Speaker 1: way that they had pledged. In the case that went

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Speaker 1: the other way out of Washington, their votes were actually counted,

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Speaker 1: and so the Electoral College didn't go, uh, you know,

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Speaker 1: to Donald Trump and Hillary Clinton alone. There were some

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Speaker 1: others in there, which is unusual. UM. But what happened

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Speaker 1: there was that they were fined each a thousand dollars

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Speaker 1: and the state Supreme Court upheld that. So again, it

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Speaker 1: really vary state by state. But ultimately what's an issue

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Speaker 1: is whether or not these individuals are allowed to vote

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Speaker 1: their conscience or whether they must follow the results of

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Speaker 1: the popular election. I need to switch topics here and

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Speaker 1: ask you a little bit about Justice Ruth Bader Ginsburg

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Speaker 1: and what we know about how well she's she's functioning

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Speaker 1: at the moment. Have we seen her in public, Well,

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Speaker 1: you know, the Supreme Court during the summertime is kind

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Speaker 1: of a unique institution in that they take a summer break,

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Speaker 1: so we don't. We haven't seen as much as Justice

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Speaker 1: Ginsburg as we have whenever the Court is in session,

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Speaker 1: which is usually from October to the end of June. UM,

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Speaker 1: she has been out and about. I saw her just

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Speaker 1: last month at an event where she um talked for

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Speaker 1: a couple of hours UM in a Q and A

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Speaker 1: with prospective law students. UM. So we haven't seen her

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Speaker 1: as much, but that's not unusual during the summertime. Bloomberg

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Speaker 1: Law Supreme Court reporter Kimberly Robinson, thank you very much

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Speaker 1: for joining us. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I am June Grosso.

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Speaker 1: This is Bloomberg