Today the Supreme Court hears two cases that ask: Do the Electoral College's "electors" have a constitutional right to cast their votes for any candidate they want, regardless of who won the popular vote in their state?

If SCOTUS formally permits "faithless electors," it could throw the 2020 election into chaos, giving a few hundred people you've never heard of the power to pick the president. Read @rickhasen: https://slate.com/news-and-politics/2019/09/electoral-college-supreme-court-lessig-faithless-electors.html

Larry Lessig is arguing this case on behalf of "faithless electors." His stated goal is to blow up the Electoral College altogether, persuading the American people to adopt a constitutional amendment that would move to a popular vote for president.

So far, both Roberts and Thomas seem skeptical that the Constitution denies states the power to control their own electors. That's a bad sign for Lessig, who is pitching a textualist, originalist argument to the conservative bloc.

I intensely dislike the Electoral College, which makes no sense anymore, but letting "faithless electors" do whatever they want is not the way to abolish it. That's just a recipe for disaster. The 2020 election doesn't need any more chaos injected into it.

Alito raises the practical consequences of Lessig's position: The losing party would "launch a massive campaign" to flip faithless, electors, leading to "a long period of uncertainty" over who actually won the presidency.

Is that really a positive consequence? Alito wonders.

Sotomayor tells Lessig: You compare electors to jurors, who can't be removed because of their vote. But jurors can be removed for all kinds of reasons—including a violation of their oath. So why can't a state remove electors for violating their pledge to support X candidate?

Re: Alito's questions, just leaving this here. https://twitter.com/imillhiser/status/1260576108593938432

Kagan: You say your argument is based in "context and history," but states have directed electors to vote for a certain candidate from the beginning.

Shorter Kagan: Isn't your originalist argument BS?

Kavanaugh advocates for the "avoid chaos" method of judging. "If it's a close call or a tie-breaker," he says, "we should avoid chaos."

Lessig is going to lose.

Kavanaugh to Lessig: You frame this as states vs. electors, but isn't it also voters vs. electors? "Wouldn't your position potentially disenfranchise voters in the state?" Kavanaugh asks.

"Why doesn't the 10th Amendment, the state's preexisting authority, come in?"

We'll see if the tides turn, but right now I forecast a 9–0 loss for Lessig. None of the justices want chaos, and the conservatives aren't buying Lessig's ersatz originalist argument—which, after all, would *restrict* a state's power to control electors.

Noah Purcell, arguing against faithless electors on behalf of Washington State, raises the possibility that foreign entities might hack electors' computers, find embarrassing material, and blackmail them into voting for a particular candidate to swing the election.

~my setup today~

Washington State SG Noah Purcell: Lessig's theory of the Electoral College granting electors a right to be faithless is "just not the original understanding. It's an academic theory that has never been put into practice."

Ginsburg asks a good question: Why has Congress always recognized the votes of faithless electors?

Purcell responds: Because Congress defers to the states' authority to exercise control over their electors.

Ginsburg sounds satisfied with that response.

My colleague is OVER the Electoral College

Alito asks if state legislatures could simply appoint "five wise electors" and declare that the state popular vote for president is advisory. Unfortunately, the answer may well be yes. https://slate.com/news-and-politics/2020/03/trump-cancel-election-day-constitution-state-electors-coronavirus.html

Sotomayor asks about the 10th Amendment, which Washington State did NOT raise. "We don't think we need to rely on it," Purcell says. "States have powers unless they're limited by the federal Constitution," and the Constitution does not protect faithless electors.

Noah Purcell, the Washington State SG, is doing really well. Calm, coherent, eloquent, persuasive but not too excitable. This is his third argument before the U.S. Supreme Court; you can listen to his first two here. https://www.oyez.org/advocates/noah_purcell