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Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: You might not even know what a faithless elector is,

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Speaker 1: but that was the issue in two Supreme Court cases

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Speaker 1: on Wednesday. Faithless electors are members of the electoral college

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Speaker 1: who refused to vote for the winner of the state

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Speaker 1: wide elections for president. The state of Colorado removed a

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Speaker 1: Democratic elector who had voted for Republican John Kasik instead

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Speaker 1: of Democrat Hillary Clinton in and the state of Washington

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Speaker 1: find three electors who voted for former Secretary of State

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Speaker 1: Colin Powell instead of Clinton. Justice Samuel Alito suggested that

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Speaker 1: giving electors free reign could lead to chaos in close

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Speaker 1: presidential elections where the popular vote is close and changing

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Speaker 1: just a few votes would alter the outcome or throw

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Speaker 1: it into the House of Representatives. There would be if

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Speaker 1: the rational response of the losing political party or elements

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Speaker 1: within the losing political party would be to launching ass

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Speaker 1: of campaign to try to influence electors. Several justices, like

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Speaker 1: Chief Justice John Roberts, worried that electors might have no constraints,

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Speaker 1: so the elector can decide I am going to vote,

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Speaker 1: I'm going to flip a coin, and however it comes out,

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Speaker 1: that's how I'm going to vote. Yes. And Justice Clarence

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Speaker 1: Thomas suggested that an elector might even vote for a

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Speaker 1: character from the Lord of the Rings. The elector who

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Speaker 1: had promised to vote for the winning candidate could suddenly say,

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Speaker 1: you know, I'm going to vote for Froto Baggins, and

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Speaker 1: that's I really like Roto Baggins. And you're saying, under

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Speaker 1: your system, you can't do anything about that. Joining me

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Speaker 1: is Edward Foley, who directs the election law program at

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Speaker 1: the Maritz College of Law. So give us a refresher

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Speaker 1: course on government. Explain the role of electors. Well, it's

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Speaker 1: what it was intended to be and what it's become

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Speaker 1: are two different things. And I think that's what the

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Speaker 1: Court was struggling with today. You know, the original vision

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Speaker 1: was for this kind of exercise of discretion or judgment

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Speaker 1: at one side in the case they're speaking about that.

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Speaker 1: The electors were envisioned to be independent actors, human beings

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Speaker 1: making choices. The founders wanted that instead of allowing any

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Speaker 1: other body to choose presidents, they didn't have Congress choose

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Speaker 1: the president. They didn't have voters choose the president regular citizens.

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Speaker 1: They didn't have the legislators choose the presidents. That they

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Speaker 1: had this electoral college to the choice. But very quickly

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Speaker 1: the original vision collapse into the system of party pledges

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Speaker 1: where electors promised to do what the political party that

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Speaker 1: they're affiliated with wants them to do. And most of

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Speaker 1: the time that's what's happened. And then we have this

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Speaker 1: term faithless electors for anomalous circumstances where some of them

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Speaker 1: go rogue and abandon their pledge. We've got a real

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Speaker 1: clash between the system is designed and the system in operations.

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Speaker 1: Most voters, I think, expect that all electors will cast

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Speaker 1: ballots in line with a popular vote. What happened here,

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Speaker 1: Why didn't they? So that's true. I suspected when most

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Speaker 1: citizens go to the polls, they think they are themselves

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Speaker 1: voting for president. That you know that it's a candidate

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Speaker 1: who's named on the ballot, not the name of the electors.

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Speaker 1: But in fact our system is this indirect process. The

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Speaker 1: citizens vote for electors, not for presidents. And again for

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Speaker 1: most of the time, it's the gears that the voters

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Speaker 1: don't see sort of work. Okay, what happened in because

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Speaker 1: it was such a contentsive election, voters in tended to

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Speaker 1: vote against a candidate rather than for candidates if you

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Speaker 1: obviously you have to vote for someone. But the level

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Speaker 1: of disapproval of the major party candidates was off the

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Speaker 1: charts in relatives to other presidential elections, and as a consequence,

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Speaker 1: they became this movement to try to attempt to get

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Speaker 1: electors to abandon their pleases to come up with some alternative,

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Speaker 1: and that's what ultimately led to this lot asan is

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Speaker 1: the issue simply do electors have to follow the popular

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Speaker 1: vote when they cast their ballots or is it more

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Speaker 1: complicated than that. Well, I think that's the heart of it.

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Speaker 1: You know, Colorado and the state of Washington have rules

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Speaker 1: designed it almost as if they want to eliminate the

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Speaker 1: electors to begin with. The tension I think in the

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Speaker 1: real tense in this case is, on the one hand,

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Speaker 1: you've got this feature or element of the Constitution which

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Speaker 1: is almost like an appendix does it doesn't really serve

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Speaker 1: any function anymore. They are human beings, and yet the

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Speaker 1: states seem to want to almost eliminate that and make

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Speaker 1: it almost automatic that whatever the popular vote in the

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Speaker 1: state is automatically translates into the state's electoral vote. Again,

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Speaker 1: that's sort of how average citizens think that the system works,

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Speaker 1: but that's not what the constitution, take fact provides. Again,

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Speaker 1: there is these competing considerations which came out at oral

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Speaker 1: arguments that you could see the justices wrestling with it

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Speaker 1: even if they didn't like the system. So how do

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Speaker 1: the j this is way those competing considerations, Well, I

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Speaker 1: think several of the justice pointed out. I think just

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Speaker 1: as the lead picking up on Justice Kavanant said, what

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Speaker 1: if the text of the Constitution points in one direction

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Speaker 1: but chaos points in the opposite direction. In other words,

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Speaker 1: the job of the court is to interpret the constitution.

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Speaker 1: We like to think of our constitution is a good document,

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Speaker 1: and for the most part it is pretty good. But

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Speaker 1: there are some features of the Constitution which are, you know,

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Speaker 1: less than fully desirable. This is the provision of the

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Speaker 1: original Constitution, and the question is whether there's enough wiggle

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Speaker 1: room in the text to kind of render it a nullity.

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Speaker 1: That's where I think Justice Kagan was going with this

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Speaker 1: notion of what if I find silence? Now, the lawyers

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Speaker 1: in favor of the electors were saying there's not silence here.

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Speaker 1: There's enough indication in the text, the concept of an

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Speaker 1: elector itself as a human being, the fact that they

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Speaker 1: cast a ballot. Our understanding what casting a ballot or

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Speaker 1: votive seems to require you to give the electors this autonomy.

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Speaker 1: But Justice Kagan was pushing back on that and saying, well,

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Speaker 1: it doesn't use the word autonomy or discretion or judgment.

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Speaker 1: It just uses the word elector. And so what if

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Speaker 1: we think the Constitution is silent on the power of

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Speaker 1: states to decide how to treat their electors, maybe we

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Speaker 1: should just let the states do what they want. So

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Speaker 1: I think you have a tension between the Constitution has

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Speaker 1: written does seem to point in one direction, whereas the Constitution,

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Speaker 1: as desirable of what we would like it to be,

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Speaker 1: almost points in the other direction. And that causes some

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Speaker 1: discomfort as the Justices, given their role in our systems.

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Speaker 1: So do you have any sense of how they might

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Speaker 1: decide this case. I think a number of the Justices

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Speaker 1: would like to rule for the states here. I think

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Speaker 1: that's fair to say. I think they see that as

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Speaker 1: kind of the easier position to take, partly because of

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Speaker 1: this notion of avoiding chaos or consequences. So I think

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Speaker 1: there's that sense of desirability, and I didn't see a

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Speaker 1: lot of sentiment among the justices desiring to give electors

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Speaker 1: autonomy if they were sort of writing a new constitution,

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Speaker 1: shi they might get rid of the office of elector.

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Speaker 1: The justices have integrity to their position, and they know

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Speaker 1: that they don't get to just vote what's desirable, and

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Speaker 1: that they have to vote the constitution. I mean, this

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Speaker 1: is the case that I think could have a number

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Speaker 1: of different outcomes. We could see a unanimous results because

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Speaker 1: they all kind of resolved the tension in the same way.

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Speaker 1: Or they could break but not necessarily along the conventional

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Speaker 1: five fourth split, depending on how each justice sort of

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Speaker 1: struggles with the competing consideration in a case involving presidential

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Speaker 1: elections that might be very wealth be desirable so that

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Speaker 1: it doesn't look like a partisan divide or know, typical

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Speaker 1: liberal current servatives divide. Thanks Ned, that's Edward Foley of

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Speaker 1: the Maritz College of Law. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com.

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Speaker 1: Slash podcasts. I'm June Brosso. This is Bloomberg, the