DOCSLIB.ORG

Elector Brief 2-28-20 FINAL

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Elector Brief 2-28-20 FINAL Nos. 19-465, 19-518 IN THE Supreme Court of the United States PETER BRET CHIAFALO, LEVI JENNET GUERRA, AND ESTHER VIRGINIA JOHN, Petitioners, v. STATE OF WASHINGTON, Respondent. COLORADO DEPARTMENT OF STATE, Petitioner, v. MICHEAL BACA, POLLY BACA, AND ROBERT NEMANICH, Respondents. On Writs of Certiorari to the Supreme Court of Washington and the U.S. Court of Appeals for the Tenth Circuit CONSOLIDATED OPENING BRIEF FOR PRESIDENTIAL ELECTORS L. LAWRENCE LESSIG Counsel of Record JASON HARROW EQUAL CITIZENS 12 Eliot Street Cambridge, MA 02138 (617) 496-1124 [email protected] Counsel for all Electors (additional counsel on inside cover) DAVID H. FRY SUMEER SINGLA J. MAX ROSEN DANIEL A. BROWN MUNGER, TOLLES & HUNTER M. ABELL OLSON LLP WILLIAMS KASTNER & 560 Mission St., 27th Floor GIBBS, PLLC San Francisco, CA 94105 601 Union St. (415) 512-4000 Suite 4100 Counsel for all Electors Seattle, WA 98101 (206) 628-6600 Counsel for Petitioners in Chiafalo JASON B. WESOKY JONAH O. HARRISON 1331 17th St., Suite 800 ARÊTE LAW GROUP PLLC Denver, CO 80202 1218 Third Ave. Counsel for Respondents Suite 2100 in Baca Seattle, WA 98101 (206) 428-3250 Counsel for Petitioners in Chiafalo i QUESTIONS PRESENTED These consolidated cases arise from the unprecedented actions of Washington and Colorado to penalize presidential electors on the basis of their electoral votes for President and Vice President. The questions presented are: 1) Do “electors,” who must “vote by Ballot” for President and Vice President, have a “right of choice” that cannot be legally controlled? 2) For Colorado Dep’t of State v. Baca, No. 19-518, only: Does an elector, who performs a “federal function” in casting a ballot, have standing to sue a state after state officials interfered with his freedom of choice, rejected his vote, and removed him from office? ii PARTIES TO THE PROCEEDINGS All parties to the proceedings are listed on the case captions. iii TABLE OF CONTENTS PAGE QUESTIONS PRESENTED ......................................... i PARTIES TO THE PROCEEDINGS ........................... ii TABLE OF CONTENTS ............................................ iii TABLE OF AUTHORITIES ..................................... viii OPINIONS BELOW ..................................................... 1 JURISDICTION ........................................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .......................................... 2 INTRODUCTION ......................................................... 3 STATEMENT OF THE CASE ..................................... 3 I. Background ........................................................ 3 A. The Legislatures Choose How Electors Are Appointed, Which Is Now By Popular Vote In Every State. ................. 3 B. After They Are Appointed, Electors Vote By Ballot And Send The Results To Congress. ................................................. 5 C. Recently, Some States Began Requiring Electors To Pledge To Support Nominees, But The Pledges Were Not Enforced Until 2016. ............................... 7 II. These Cases ........................................................ 8 iv TABLE OF CONTENTS (Continued) PAGE A. The Electors Are Nominated And Appointed As Presidential Electors. ...... 9 B. The Electors Seek Clarity On The Enforceability Of State Laws Of Uncertain Constitutionality. ................ 10 C. The Electors Vote And Are Penalized Because Of Their Votes. ....................... 11 D. The Electors Pursue Appeals, And The Lower Courts Split. ............................... 13 1. Washington: The Electors’ fines are upheld. .................................. 13 2. Colorado: An Elector’s removal is ruled unconstitutional. .............. 14 E. This Court Grants Certiorari and Consolidates The Cases. ....................... 15 SUMMARY OF ARGUMENT .................................... 16 ARGUMENT ............................................................... 17 I. The Constitution Requires That Presidential Electors Be Free To Cast Votes Without Interference Or Sanction. ................................ 17 A. Article II Requires Elector Independence. ....................................... 18 v TABLE OF CONTENTS (Continued) PAGE 1. Presidential electors are an independent body of citizens who freely elect the President. .......... 18 2. A state has the power “to appoint” electors, which does not entail a power to control them. ............... 19 3. An “Elector” is free to choose. .... 23 4. A “vote” is an act of discretion. .. 26 5. The phrase “by ballot” means electors must record their votes to be tabulated without interference. ............................... 29 B. The Twelfth Amendment Did Not Alter The Independence Contemplated By Article II. ............................................... 32 1. When the Twelfth Amendment was adopted, there had already been dozens of anomalous electoral votes. ............................ 32 2. The Twelfth Amendment did not alter elector independence. ........ 36 3. The Twelfth Amendment’s specific insulation of the electors’ voting confirms that states may not interfere with it. ......................... 37 vi TABLE OF CONTENTS (Continued) PAGE C. The Constitution’s Structure Confirms That States Have No Power To Direct How Electors Perform Their Duty. ...... 38 1. Electors perform a “federal function,” and the Supremacy Clause shields that function from state control. ............................... 39 2. A state cannot control indirectly what it cannot control directly. 42 3. The only substantive limits on elector freedom that states may enforce are those specified by the Constitution’s text. ..................... 43 D. Centuries Of History Show That Electors Have Discretion To Vote For Eligible Candidates Of Their Own Choice. ................................................... 46 1. Congress has always accepted anomalous votes by electors. ..... 46 2. Consistent with practice and Ray v. Blair, Congress does not enforce the pledge required of D.C.’s electors through legal sanction. 48 E. The Expectations Of The Public Have Not Amended The Constitution. .......... 49 vii TABLE OF CONTENTS (Continued) PAGE II. Micheal Baca Has Standing Against Colorado. .......................................................... 52 A. Electors Have Standing Because They Are Vindicating A Personal Right To Vote For President. ............................... 53 B. Electors Are Not Subordinate State Officials. ................................................. 55 C. Colorado’s Argument Confuses Standing With The Merits. ................................... 56 III. Even If Baca Is Not Justiciable, This Court Must Still Clarify Elector Freedom With A Decision In Chiafalo Only. .............................. 57 CONCLUSION ........................................................... 59 APPENDIX A .............................................................. 1a APPENDIX B .............................................................. 3a viii TABLE OF AUTHORITIES PAGE(S) FEDERAL CASES Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015) ..................................... 24, 56 ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989) ......................................... 56, 57 Bd. of Education of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236 (1968) ............................................... 53 Breedlove v. Suttles, 302 U.S. 277 (1937) ............................................... 58 Burroughs v. United States, 290 U.S. 534 (1934) ........................................... 5, 39 Burson v. Freeman, 504 U.S. 191 (1992) ............................................... 31 Bush v. Gore, 531 U.S. 98 (2000) ............................................. 3, 39 Bushel’s Case, 124 E.R. 1006 (C.P.1670) ...................................... 51 Chiafalo v. Inslee, 224 F. Supp. 3d 1140 (W.D. Wash. 2016) ...................................................................... 11 ix TABLE OF AUTHORITIES (Continued) PAGE(S) Chisolm v. Georgia, 2 U.S. 419 (1793) ................................................... 58 Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) ............................................... 40 Gregg v. Georgia, 428 U.S. 153 (1976) ............................................... 51 Hancock v. Train, 426 U.S. 167 (1976) ............................................... 40 Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966) ............................................... 41 Hawke v. Smith, 253 U.S. 221 (1920) ......................................... 39, 40 Johnson v. Maryland, 254 U.S. 51 (1920) ................................................. 40 Kunz v. New York, 340 U.S. 290 (1951) ............................................... 43 Leser v. Garnett, 258 U.S. 130 (1922) ............................................... 40 Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956) ............................................... 40 Marbury v. Madison, 5 U.S. 137 (1803) ................................................... 58 x TABLE OF AUTHORITIES (Continued) PAGE(S) McCulloch v. Maryland, 17 U.S. 316 (1819) ........................................... 42, 43 McPherson v. Blacker, 146 U.S. 1 (1892) ........................................... passim Mistretta v. United States, 488 U.S. 361 (1989) ......................................... 20, 23 Morrison v. Olson, 487 U.S. 654 (1988) ......................................... 22, 23 Myers v. United States, 272 U.S. 52 (1926) ........................................... 23, 53 National Labor
Load more

Recommended publications
  • Author and Activist Lawrence Lessig
    Big Money Bulletin Author and reform activist Lawrence Lessig Inside to headline WDC annual meeting on May 2 Harvard University professor and campaign finance reform crusader Page 2 Lawrence Lessig will be the keynote speaker for the Democracy Supreme Court drops another bomb Campaign’s annual membership meeting to be held on Friday, May 2. Wisconsin communities move to amend Lessig is the author of Republic, Lost: How Money Corrupts Congress Page 3 — And a Plan to Stop It and founder of the national group Rootstrikers. Change in leadership coming at WDC He is the driving force behind the New Hampshire Rebellion that started Less for voters, more for lobbyists with a 185-mile walk across the state and now is working to make sure that every federal candidate in the 2016 primaries is asked one question: Page 4 “How are YOU going to end the system of corruption in Washington, Kissing the ring in Vegas D.C.?” Lessig also is well known for his dynamic TED talks. TED stands for Technology, Entertainment and Design and is a nonprofit devoted to spreading ideas, usually in the form of short, powerful talks of 18 minutes or less. Started in 1984, the group’s mission is promoted through conferences and videos in more than 100 languages that cover topics from science to April 2014 business to global issues. Edition No. 89 This year’s WDC membership meeting is being held at Madison’s Barrymore Theatre, located at 2090 Atwood Avenue on the city’s near east side. On the Web: Registration will begin at 5:30 p.m., with the evening’s program starting www.wisdc.org at 6.
    [Show full text]
  • CNN/WMUR/UNH Tracking Poll -1- January/February, 2016 1
    Conducted by the University of New Hampshire Survey Center Interviews with 914 adults in New Hampshire conducted by land line and cellular telephone on January 27-30, 2016 including 409 who say they plan to vote in the Republican presidential primary and 347 respondents who say they plan to vote in the Democratic presidential primary. The margin of sampling error for results based on Republican primary voters is plus or minus 4.8 percentage points and for results based on Democratic primary voters is plus or minus 5.3 percentage points. EMBARGOED FOR RELEASE: Sunday, January 31 at 6:00 p.m. CNN/WMUR/UNH Tracking Poll -1- January/February, 2016 1. (UNDECLARED / INDEPENDENT LIKELY VOTERS ONLY) “"Which Presidential primary election do you think you will vote in ... the Republican Primary or the Democratic Primary?" PROBE: “As of RIGHT NOW, which primary do you think you will vote in?” Dec. Jan. Jan. 2015 13-18 27-30 REPUBLICAN PRIMARY 48% 44% 47% DEMOCRATIC PRIMARY 38% 48% 42% UNDECIDED 14% 8% 11% CNN/WMUR/UNH Tracking Poll -2- January/February, 2016 2. (REPUBLICAN PRIMARY VOTERS ONLY:) “Have you definitely decided who you will vote for in the New Hampshire primary … are you leaning toward someone … or have you considered some candidates but are still trying to decide?” June Sept Dec Jan Jan. 2015 2015 2015 13-18 27-30 DEFINITELY DECIDED 8% 13% 18% 31% 39% LEANING TOWARD SOMEONE 17% 28% 26% 26% 24% STILL TRYING TO DECIDE 75% 59% 56% 43% 37% 3. (REPUBLICAN PRIMARY VOTERS ONLY:) "I’m going to read you the names of the candidates who are either running or considering running for the Republican nomination.
    [Show full text]
  • THE FUTURE of IDEAS This Work Is Licensed Under a Creative Commons Attribution-Noncommercial License (US/V3.0)
    less_0375505784_4p_fm_r1.qxd 9/21/01 13:49 Page i THE FUTURE OF IDEAS This work is licensed under a Creative Commons Attribution-Noncommercial License (US/v3.0). Noncommercial uses are thus permitted without any further permission from the copyright owner. Permissions beyond the scope of this license are administered by Random House. Information on how to request permission may be found at: http://www.randomhouse.com/about/ permissions.html The book maybe downloaded in electronic form (freely) at: http://the-future-of-ideas.com For more permission about Creative Commons licenses, go to: http://creativecommons.org less_0375505784_4p_fm_r1.qxd 9/21/01 13:49 Page iii the future of ideas THE FATE OF THE COMMONS IN A CONNECTED WORLD /// Lawrence Lessig f RANDOM HOUSE New York less_0375505784_4p_fm_r1.qxd 9/21/01 13:49 Page iv Copyright © 2001 Lawrence Lessig All rights reserved under International and Pan-American Copyright Conventions. Published in the United States by Random House, Inc., New York, and simultaneously in Canada by Random House of Canada Limited, Toronto. Random House and colophon are registered trademarks of Random House, Inc. library of congress cataloging-in-publication data Lessig, Lawrence. The future of ideas : the fate of the commons in a connected world / Lawrence Lessig. p. cm. Includes index. ISBN 0-375-50578-4 1. Intellectual property. 2. Copyright and electronic data processing. 3. Internet—Law and legislation. 4. Information society. I. Title. K1401 .L47 2001 346.04'8'0285—dc21 2001031968 Random House website address: www.atrandom.com Printed in the United States of America on acid-free paper 24689753 First Edition Book design by Jo Anne Metsch less_0375505784_4p_fm_r1.qxd 9/21/01 13:49 Page v To Bettina, my teacher of the most important lesson.
    [Show full text]
  • Lawrence Lessig
    TRANSCRIPT Money in Politics 2009 Conference Pre-Luncheon Keynote Presentation: Lawrence Lessig Susan Liss: I'm director of the Democracy Program at the Brennan Center and our campaign finance work falls under our side of the aisle called Democracy. I am incredibly thrilled to be working with fantastic colleagues and I really want to thank all of my colleagues who have put this program together today. My mind is just twirling on the things that we can do and we've only had one panel and two wonderful kickoff speakers. I'm here to introduce our keynote, and we are delighted and honored that professor Lawrence Lessig from Stanford Law School has been willing to fly across the country to share his knowledge with us. I know many of you are very familiar with his contributions to this field already. He is currently a professor of law at Stanford Law School and the founder of the school's Center for Internet and Society. He is one of the foremost intellectuals on intellectual property and intellectual property law and the Internet; from what I understand that tremendous knowledge base has seguewayed into a fascination and interest with these very important underlying issues involving campaign finance reform. He will be moving to Harvard to start a study on ethics and to start a center on ethics and institutional corruption in the fall. We are really very honored and so pleased to welcome him here and thank him for coming. Professor Lessig. Lawrence Lessig: Thank you very much. The advertisements for this conference said that the first keynote would provide some statistics and I, quote, "would provide slides" so here I am to provide the slides.
    [Show full text]
  • Supreme Court of the United States
    No. 20-1100 IN THE Supreme Court of the United States PAUL RODRIGUEZ, ROCKY CHAVEZ, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, & CALIFORNIA LEAGUE OF UNITED LATIN AMERICAN CITIZENS, Petitioners, v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, & JAMES SCHWAB, ACTING SECRETARY OF STATE OF CALIFORNIA, IN THEIR OFFICIAL CAPACITIES, Respondents. On Petition for Writ of Certiorari to the Ninth Circuit Court of Appeals REPLY BRIEF James P. Denvir III David Boies BOIES SCHILLER FLEXNER LLP Counsel of Record 1401 New York Ave., NW BOIES SCHILLER FLEXNER LLP Washington, DC 20005 333 Main Street (202) 237-2727 Armonk, NY 10504 [email protected] (914) 749-8200 [email protected] Luis Roberto Vera Jr. LUIS VERA JR. & ASSOCIATES L. Lawrence Lessig 1325 Riverview Towers EQUAL CITIZENS 111 Soledad 12 Eliot Street San Antonio, TX 78205 Cambridge, MA 02138 (210) 225-3300 (617) 496-1124 [email protected] [email protected] Attorneys for Petitioners May 19, 2021 i TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................ ii ARGUMENT ................................................................ 1 CONCLUSION .......................................................... 12 ii TABLE OF AUTHORITIES Cases Page(s) Anderson v. Celebrezze, 460 U.S. 780 (1983) .................................................. 7 Baten v. McMaster, 967 F.3d 345, 355 (4th Cir. 2020), as amended (July 27, 2020) (Wynn, J., dissenting) ................. 1, 7 Burns v. Richardson, 384 U.S. 73 (1966) .................................................... 3 Bush v. Gore, 531 U.S. 98 (2000) .............................................. 3, 10 Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ............................................ 10 Gill v. Whitford, 138 S. Ct. 1916 (2018) .............................................. 8 Gray v. Sanders, 372 U.S. 368 (1963) .......................................... 3, 5, 7 Hicks v. Miranda, 422 U.S. 332 (1975) .................................................. 1 Illinois State Bd.
    [Show full text]
  • Clinton's Bungled Campaign Reboot, Boehner in Trouble, and Shutdown
    blogs.lse.ac.uk http://blogs.lse.ac.uk/usappblog/2015/09/11/clintons-bungled-campaign-reboot-boehner-in-trouble-and-shutdown-threat-looms- again-us-national-blog-round-up-for-5-11-september/ Clinton’s bungled campaign reboot, Boehner in trouble, and shutdown threat looms again: US national blog round up for 5 – 11 September USAPP Managing Editor, Chris Gilson looks at the best in political blogging from around the Beltway. Our round- up of state blogs will follow on Saturday afternoon. Jump to: Elections and the road to 2016 Government, the Beltway and Congress’ agenda Foreign policy, defense and trade Obamacare and health policy The economy and society And finally… President Obama, the Democratic Party, and the GOP On Tuesday this week, Daily Kos reports that President Obama has signed an executive order which will allow the 300,000 people working on federal contracts to earn up to 7 days sick leave from 2017. President Obama also made a renewed call for community college to be free for the first two years this week. The Daily Signal has five caveats for Obama’s plan, including that community colleges’ don’t really work effectively any more, and that many low-income students already have access to federal grants to finance fees. Credit: Michael Bentley (Flickr, CC-BY-2.0) Moving on to the Democratic Party itself, on Monday The Atlantic looks at whether it will be able to retain its hold on black voters, with higher levels of economic well-being among blacks potentially pushing many towards the Republican Party.
    [Show full text]
  • The Economist/Yougov Poll
    The Economist/YouGov Poll Sample 2000 General Population Respondents Conducted October 23 - 27, 2015 Margin of Error ±3% 1. Some people seem to follow what’s going on in government and public affairs most of the time, whether there’s an election going on or not. Others aren’t that interested. Would you say you follow what’s going on in government and public affairs ... ? Most of the time . 48% Some of the time . 30% Only now and then . .13% Hardly at all . 9% Don’t know . .1% 2. Would you say things in this country today are... Generally headed in the right direction . 27% Off on the wrong track . 62% Not sure . 11% 3. Do you have a favorable or an unfavorable opinion of the following people? Very Somewhat Somewhat Very Don’t favorable favorable unfavorable unfavorable know Hillary Clinton 21% 21% 12% 39% 7% Lawrence Lessig 2% 7% 11% 12% 68% Martin O’Malley 2% 15% 16% 16% 51% Bernie Sanders 18% 24% 15% 22% 22% 4. How liberal or conservative are the Democrats listed below? Respondent placed item on scale from 0 - "Very Liberal" to 100 - "Very Conservative". Hillary Clinton . .28 Lawrence Lessig . .33 Martin O’Malley . 33 Bernie Sanders . 24 1 The Economist/YouGov Poll 5. The percentage of respondents who selected ’not sure’ about the comparative ideology of the listed politicians. Rated candidate Not sure Hillary Clinton 89% 11% Lawrence Lessig 40% 60% Martin O’Malley 54% 46% Bernie Sanders 82% 18% 6. If you had to choose one, which one of these individuals would you want to be the Democratic nominee for president in 2016? Asked of registered voters who identify as Democrats Hillary Clinton .
    [Show full text]
  • Clearing the Cops
    HEALING HEALTH CARE | DARK MONEY | EMPOWERING PRINCIPALS PRESORTED STANDARD U.S. POSTAGE PAID ABERDEEN, SD 11 Beacon Street, Suite 500 PERMIT NO. 200 Boston, MA 02108 Address Service Requested DEADLY FORCE / HEALING HEALTH CARE / BPS HIRING MONEY / HEALING FORCE / DARK HEALTH DEADLY POLITICS, IDEAS & CIVIC LIFE IN MASSACHUSETTS Visit MassINC online at www.massinc.org MassINC thanks the many individuals and organizations whose support makes CommonWealth possible. chairman’s circle sponsors Metropolitan Area Planning Massachusetts Technology CWC Builders Anonymous (2) Council Collaborative Delta Dental Plan of ArtPlace America Mintz, Levin, Cohn, Ferris, The MENTOR Network Massachusetts Glovsky and Popeo, P.C. The Boston Foundation New England Regional Emerson College NAIOP Massachusetts Council of Carpenters John S. and James L. Knight Google Foundation National Grid Theodore Edson Parker Massachusetts Association Foundation MassMutual Financial Group Partners HealthCare of REALTORS® Trinity Financial Nellie Mae Education Meketa Investment Group Foundation major sponsors Tufts Health Plan Merrimack Valley Economic Anonymous Public Welfare Foundation University of Massachusetts Development Council Citizens Bank State House News Service Northeastern University lead sponsors Irene E. & George A. Davis Nutter McClennen & Fish LLP Foundation Anonymous contributing sponsors Retailers Association of Foley Hoag LLP Barr Foundation The Architectural Team Massachusetts Clearing Harvard Pilgrim Health Care Beacon Health Strategies BNY Mellon Seniorlink
    [Show full text]
  • Cruz Rising in Iowa; Clinton Back out to Dominant Lead
    FOR IMMEDIATE RELEASE November 2, 2015 INTERVIEWS: Tom Jensen 919-744-6312 IF YOU HAVE BASIC METHODOLOGICAL QUESTIONS, PLEASE E-MAIL [email protected], OR CONSULT THE FINAL PARAGRAPH OF THE PRESS RELEASE Cruz rising in Iowa; Clinton back out to dominant lead Raleigh, N.C. – PPP's newest Iowa poll finds a tight race on the Republican side in the state with Donald Trump at 22%, Ben Carson at 21%, Ted Cruz at 14%, Marco Rubio at 10%, Mike Huckabee and Bobby Jindal each at 6%, and Jeb Bush and Carly Fiorina each at 5%. Polling further back are Chris Christie at 3%, John Kasich, Rand Paul, and Rick Santorum each at 2%, Lindsey Graham with less than 1%, and Jim Gilmore and George Pataki each with no supporters. Compared to our last Iowa poll in mid-September Trump's support is down 2 points (from 24% to 22%), while Carson's support is up 4 points (from 17% to 21%) putting them in the deadlock. The big gainer from a month ago is Ted Cruz though. He's gone from 8% to 14%, and also seen his favorability rating improve from 51/23 to 62/16. Cruz is now leading the field in Iowa among Tea Party voters (34% to 24% for Trump and 22% for Carson), and voters who identify themselves as 'very conservative' (24% to 22% for Carson and 21% for Trump.) “Ted Cruz seems to have gotten the biggest boost out of the last six weeks in Iowa,” said Dean Debnam, President of Public Policy Polling.
    [Show full text]
  • EC Equal Votes
    EQUAL VOTES OUR FIGHT TO FIX THE ELECTORAL COLLEGE FAQ OUR PLAN The Problem with Our Presidential Elections: Our Votes Are Not Equal At the core of democracy lies a simple principle—that all votes should count equally. Whether you’re white or black, rich or poor, from Rapid City, SD or Cedar Rapids, IA, your vote should count the same as the vote of anyone else. “One person, one vote!” This principle is violated by the way we elect our president. Because of the winner-take-all system of allocaJng Electoral College votes, the only votes that count are those for the person who wins the state in which they were cast. In 2016, this resulted in over 52 million votes being ignored in the presidenal elecon – that is hardly being counted equally. All but two states (Maine & Nebraska) assign all their Electoral College votes to the winner of the popular vote in that state—regardless of the margin of victory. For example, in the last elecon: • Hillary Clinton beat Donald Trump by just 45,000 votes in Minnesota, winning 46.4% to 44.9%. Yet she got 100% of Minnesota’s 10 Electoral College votes, while Trump got zero. • In Michigan, Trump beat Clinton by just 10,000 votes, but he got every single one of their 16 Electoral College votes, while she got zero. This is the consequence of winner-take-all: the votes for president of millions of U.S. cizens get discarded, simply because they are not in the majority in a parcular state. The Results of This Inequality Undermine Our Republic States originally adopted winner-take-all because it amplified the power of their votes.
    [Show full text]
  • Campaign Legal Center and Issue One Supporting the States ______Paul M
    Nos. 19-465, 19-518 IN THE Supreme Court of the United States ___________ PETER BRET CHIAFALO, LEVI JENNET GUERRA, and ESTHER VIRGINIA JOHN, Petitioners, v. STATE OF WASHINGTON, Respondent. ___________ COLORADO DEPARTMENT OF STATE, Petitioner, v. MICHEAL BACA, POLLY BACA, and ROBERT NEMANICH, Respondents. ___________ On Writs of Certiorari to the Supreme Court of Washington and the U.S. Court of Appeals for the Tenth Circuit ___________ BRIEF OF AMICI CURIAE CAMPAIGN LEGAL CENTER AND ISSUE ONE SUPPORTING THE STATES ___________ PAUL M. SMITH TOBIAS S. LOSS-EATON * ADAV NOTI JOHN L. GIBBONS † DAVID KOLKER CODY L. REAVES † CAMPAIGN LEGAL CENTER SIDLEY AUSTIN LLP 1101 14th Street, N.W. 1501 K Street, N.W. Suite 400 Washington, D.C. 20005 Washington, D.C. 20005 (202) 736-8000 [email protected] Counsel for Amici Curiae April 8, 2020 * Counsel of Record † Mr. Gibbons and Mr. Reaves are admitted only in California and New York, respectively, and are prac- ticing law in the District of Columbia pending admis- sion to the D.C. Bar and under the supervision of prin- cipals of the firm who are members in good standing of the D.C. Bar. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................. ii INTERESTS OF AMICI CURIAE ....................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT .................................................... 2 ARGUMENT ......................................................... 5 I. THE STATES’ PLENARY APPOINTMENT POWER INCLUDES THE ABILITY TO PLACE EX ANTE CONDITIONS ON ELECTOR APPOINTMENTS. ....................... 5 A. A Legally Mandated Pledge To Follow The State’s Popular Vote Is A Condition Of An Elector’s Appointment. .............................. 6 B. Enforcing An Elector’s Pledge Is A Valid Exercise Of The State’s Appointment Authority.
    [Show full text]
  • 1 United States District Court Western
    Case 5:18-cv-00175-DAE Document 43 Filed 02/25/19 Page 1 of 32 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION LEAGUE OF UNITED LATIN § No. 5:18-CV-175-DAE AMERICAN CITIZENS, LEAGUE § OF UNITED LATIN AMERICAN § CITIZENS OF TEXAS, JOSEPH C. § PARKER, Jr., HECTOR FLORES, § SANFORD LEVINSON, YVONNE § M. DAVIS, MARY RAMOS, § GLORIA RAY, GUADALUPE § TORRES, RAY VALARDE, and § DORIS WILLIAMS, § § Plaintiffs, § § vs. § § GREGORY WAYNE ABBOTT, in § his official capacity as Governor of § the State of Texas, and ROLANDO § PABLOS, in his official capacity as § Secretary of State of the State of § Texas, § § Defendants. § ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (DKT. # 21) Before the Court is a Motion to Dismiss filed by Defendants Greg Abbott—Governor of Texas—and Rolando Pablos—Secretary of State of Texas— (“Defendants”). (Dkt. # 21). On February 13, 2019, the Court held a hearing on the motion. At the hearing, David Boies, Esq. and Luis R. Vera, Jr., Esq. represented Plaintiffs and Matthew H. Frederick, Esq., Patrick K. Sweeten, Esq., 1 Case 5:18-cv-00175-DAE Document 43 Filed 02/25/19 Page 2 of 32 and Todd L. Disher, Esq. represented Defendants. The motion is fully briefed and ripe for review. After careful consideration of the memoranda filed in support of and in opposition to the motion, as well as the arguments advanced at the hearing, the Court—for the reasons that follow—GRANTS Defendants’ Motion to Dismiss.1 (Id.) BACKGROUND In presidential elections, Article 2 of the United States Constitution prescribes that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress .
    [Show full text]