Amicus Curiae Brief — Colorado Department of State, Petitioner v. Micheal Baca, et al.

Supreme Court briefNov 20, 2019

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No. 19-518

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In The

Supreme Court of the United States

OCTOBER TERM 2019

-----------------------------------------------------------------COLORADO DEPARTMENT OF STATE,

Petitioner,

MICHEAL BACA, et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

-----------------------------------------------------------------BRIEF FOR SOUTH DAKOTA AND MISSISSIPPI,

MARYLAND, INDIANA, NEVADA, ALASKA,

NEBRASKA, LOUISIANA, OHIO, OKLAHOMA,

ARIZONA, ILLINOIS, DELAWARE, NEW MEXICO,

CALIFORNIA, VIRGINIA, SOUTH CAROLINA,

WEST VIRGINIA, NORTH DAKOTA, RHODE

ISLAND, MONTANA AND TENNESSEE AS

AMICI CURIAE IN SUPPORT OF PETITIONER

-----------------------------------------------------------------JASON R. RAVNSBORG,

South Dakota Attorney General

PAUL S. SWEDLUND,

Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

1302 East Highway 14, Suite 1

Pierre, SD 57501-8501

Telephone: 605-773-3215

paul.swedlund@state.sd.us

Attorneys for Amici Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Do Article II or the 12th Amendment forbid a

state from requiring its presidential electors to follow

the state’s popular vote when casting their Electoral

College ballots?

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ...........................

SUMMARY OF ARGUMENT ................................

ARGUMENT ...........................................................

A. Binding Electors Is Textually And Historically Consistent With The States’ Broad

Constitutional Appointment Powers Under

Article II, Section 1 ......................................

The Lower Court Interpreted The States’

Role And Powers Under Article II, Section 1

Too Restrictively ..........................................

CONCLUSION .......................................................

COUNSEL FOR ADDITIONAL

AMICI CURIAE ..................................................

iii

TABLE OF AUTHORITIES

Page

CASES

Baca v. Colorado Dept. of State, Petitioner’s

Appendix ........................................... 9, 10, 11, 12, 14

Fitzgerald v. Green, 134 U.S. 377 (1890) ................ 8, 12

In re Guerra, 441 P.3d 807 (Wash. 2019) .....................2

Husted v. A. Philip Randolph Inst., 138 S. Ct.

1833 (2018) ................................................................3

McPherson v. Blacker, 146 U.S. 1 (1892) ............ passim

Ray v. Blair, 343 U.S. 214 (1952) ........................ passim

Raines v. Byrd, 521 U.S. 811 (1997) .............................8

Smith v. Indiana, 191 U.S. 138 (1903) .........................8

Utah v. Evans, 536 U.S. 452 (2002) ..............................9

OTHER CITATIONS

United States Constitution, Article II,

Section 1 .......................................................... passim

United States Constitution, Article III ........................5

2 Story On The Constitution, § 1463 (5th Ed.

1891) ...................................................................... 4, 7

Hamilton (Publius), Federalist 68, published

March 12, 1788 .................................................... 4, 15

Republicus, Anti-Federalist 72, published

March 1, 1788 ...................................................... 5, 15

3 Story, Commentaries On The Constitution Of

The United States § 1457 (1833) ..............................6

TABLE OF AUTHORITIES – Continued

Page

Restatement 3rd of Agency §§ 301, 306, 309 ..... 8, 9, 13

Uniform Faithful Presidential Electors Act § 7(c)........ 13

Mich.Comp.Laws Ann. § 168.47 (2019) ......................13

Neb.Rev.Stat. § 32-714(4) (2016) ................................13

INTEREST OF AMICI CURIAE

Amici curiae1 are states that have exercised, by varying means acceptable to their respective electorates,

their constitutional authority to direct the manner of

appointing their presidential electors. Thirty-two states2

and the District of Columbia have enacted laws binding

a political party’s designated presidential electors to

cast their votes for the party’s nominees for President

and Vice President. South Dakota, like some states,

does not bind its electors, by pledge or otherwise.3

Throughout South Dakota’s history it simply has been

understood that electors will honor their party’s and

the electorate’s will and cast their votes for the presidential ticket that won the statewide popular vote.

The increasing polarization of the national electorate, and the record number of rogue electors in the

Notice of intent to file this brief was served on counsel for

the respondent via first class United States mail and e-mail on

October 30, 2019.

These amici curiae states bind electors: Alaska (Alaska

Statute 15.30.040, -90); Arizona (Ariz.Rev.Stat. 16-212); California

(Cal.Elections Code § 6906); Delaware (Del. Code Ann. Title 15,

§ 4303(b)); Indiana (Ind.Code §§ 3-10-4-1.7, -8, -9); Maryland

(Md.Code Ann. § 8-505(c)); Mississippi (Miss.Code Ann. § 23-15785(3)); Nebraska (Neb.Rev.Stat. §§ 32-713(2), -714(2)); Nevada

(Nev.Rev.Stat. 298.045(1), 298.075(2)(b)); New Mexico (N.M.Stat.Ann.

§ 1-15-9 (imposing felony liability for casting vote for any candidate other than nominee of party that appointed elector)); Ohio

(Ohio Rev. Code 3505.39, -40); Oklahoma (Okla.Stat.Title 26

§ 10-102); South Carolina (S.C. Code Ann. § 7-19-80); Virginia

(Va.Code § 24.2-203 ¶ 2); North Dakota; Montana (Mont. Code Ann.

§ 13-25-304, -307); Tennessee (Tenn. Code Ann. § 2-15-104(c)(1)).

These amici curiae states do not bind electors: Illinois, Louisiana, West Virginia, Rhode Island.

2016 election, call the continuing viability of South

Dakota’s honor system into question. South Dakota

must now consider whether to join the ranks of states

which bind their electors by law to their party’s nominee. Guidance from this Court on the constitutionality

of binding electors, and the controls state legislatures

may enact to do so, will assist not only South Dakota

but all states – binding and non-binding alike – in formulating future policy on this vital question. Without

this Court’s guidance, the decision below creates considerable uncertainty regarding the authority of states

when appointing presidential electors and the validity

of laws binding electors to follow the will of the electorate.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

Whether to bind electors and, if so, by what means

is the constitutional prerogative of state legislatures.

Though nothing in the text of the Constitution or its

historical implementation precludes states from conditioning service as an elector on honoring the state’s

popular vote for a presidential ticket, there is now a

conflict of authorities over how to interpret this textual

silence.4 The scope of state autonomy in the matter of

appointing electors, particularly the authority to enact

A petition for a writ of certiorari to appeal the Washington

Supreme Court’s recent decision finding that state restraints on

electors do not “interfere with any federal [Constitutional] function” is currently pending before this court. In re Guerra, 441 P.3d

807 (Wash. 2019), U.S.S.Ct. No. 19-465.

and enforce pledges to honor the popular vote, is increasingly salient in the current political climate. Given

that the lower court’s decision may rally more electors

to cast faithless ballots in future elections, potentially

causing disputed outcomes, this case provides an ideal

vehicle for addressing this important federal question

outside the context of an active election controversy.

------------------------------------------------------------------

ARGUMENT

If it is constitutional to exact a pledge to support a

party’s nominee as a condition of serving as an elector,5

it necessarily follows that there is some constitutional

means of enforcing that pledge.6 Mechanisms adopted

by states for enforcing such pledges are by no means

incompatible with their broad authority and functions

under Article II, Section 1 of the United States Constitution. The lower court arrived at its decision to invalidate Colorado’s binding statute by interpreting Article

II, Section 1 too restrictively, and overlooking the Electoral College’s historical role as the voice of the states

and their electorates.

Ray v. Blair, 343 U.S. 214 (1952).

Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1849

(2018) (Thomas, J., concurring) (analogizing the States’ Art. II,

§ 1 authority over electors to the Voter Qualifications Clause and

explaining the States’ “power to establish [voting] requirements

would mean little without the ability to enforce them”).

A. Binding Electors Is Textually And Historically

Consistent With The States’ Broad Constitutional Appointment Powers Under Article II,

Section 1

The constitution’s delegation to the states of the

power to direct the manner in which electors are appointed is, by its terms, sufficiently open-ended to allow conditioning service as an elector on a pledge to

support the nominees of the presidential ticket that

won the state’s popular vote.7 It has ever been so. “In

the first election held under the constitution, the people looked beyond these agents (electors), fixed upon

their own candidates for President and Vice President

and took pledges from the electoral candidates to obey

their will. In every subsequent election, the same thing

has been done.”8 Alexander Hamilton’s concept of a college of “informed” and “discerning,” independent electors simply was not embodied in, and never understood

to emanate from, the adopted constitutional language.9

The absence of textual support for the Hamiltonian model of the electoral college may stem from

the contemporaneous controversy that surrounded the

United States Constitution, Article II, Section 1, Clause 2

(“Each State shall appoint, in such Manner as the Legislature

thereof may direct, a Number of Electors, equal to the whole

Number of Senators or Representatives to which the State may

be entitled in the Congress: but no Senator or Representative,

or Person holding an Office of Trust or Profit under the United

States, shall be appointed an Elector”).

2 Story On The Constitution, § 1463 (5th Ed. 1891).

Hamilton (Publius), Federalist 68, published March 12,

1788.

paternalistic concept of a college of men choosing the

President according to their “informed” and “discerning” opinions rather than the popular will. Countering

Hamilton was Anti-Federalist 72, asking if “free people” should “resign their right of suffrage into other

hands besides their own” and whether “it [is] rational,

that the sacred rights of mankind should thus dwindle

down to Electors of electors.”10 Though the interposition of an Electoral College between the people and

their President had carried the day at the time of AntiFederalist 72’s publication (largely to induce southern

states into the union), a textual requirement of strict

independence did not. Rather, as noted in Anti-Federalist 72, the appointment of electors was delegated to

“the legislative body of each state . . . to point out to

their constituents some mode of choice [of electors], or

(to save trouble) may choose themselves, a certain

number of electors.”11

Article III of the Constitution demonstrates that

the framers knew how to create independent institutions. “Doubtless it was supposed [by Hamilton and

like-minded framers] that the electors would exercise

a reasonable independence and fair judgment in the

selection” of the President.12 But not all framers were

of a like mind;13 if it had been the determined and universal intent of all the framers (or even a majority of

Republicus, Anti-Federalist 72, published March 1, 1788.

McPherson v. Blacker, 146 U.S. 1, 36 (1892).

McPherson, 146 U.S. at 28 (describing the varied proposals

floated at the convention for the appointment of electors).

them) that the people should “resign their right of suffrage” to independent intermediaries, Article II, Section

1 (like Article III) would contain concrete measures to

assure elector independence. Instead, even proponents

of the Hamiltonian model admit that strict elector independence is no more than “implicit” in the adopted

text.14

By omitting such concrete measures for elector independence, or any limitations on state authority concerning elector qualifications beyond the ineligibility of

certain federal officers, Hamilton’s “original expectation may be said to have been frustrated,” “completely

frustrated” even.15 But, as this Court has pointed out,

the convention did not slavishly adopt Hamilton’s

views on every matter.16 As one of the “enlarged and

liberal”17 minds of his time, Hamilton certainly could

see for himself that Article II, Section 1 did not implement his Electoral College design. He doubtlessly

would have pressed for language that did if he had believed his fellow delegates would have accepted it. But

Hamilton and other Federalist delegates had to make

compromises with Anti-Federalists. Article II, Section

Ray, 343 U.S. at 232 (Jackson, J., dissenting).

McPherson, 146 U.S. at 36 (“may” italicized to illustrate

how the court treated the proposition that Hamilton’s concept of

the Electoral College had been “frustrated” by its historical manner of implementation as merely arguable); 3 Story, Commentaries On The Constitution Of The United States § 1457 (1833).

McPherson, 146 U.S. at 28 (convention rejected Hamilton’s

suggestion of “electors chosen by electors chosen by the people”).

3 Story, Commentaries On The Constitution Of The United

States § 1457 (1833).

1 is that compromise; as adopted, it “reconciled contrariety of views” by granting states “the broadest power

of determination” to select the Hamiltonian model or

some other of their own choosing.18 It would appear

Hamilton published Federalist 68 as a means of persuading the populace to implement the Electoral College according to his preference.

The frustration of Hamilton’s commendable, if unrealistic, idyll of independent electors is “no reason for

holding that the power confided to the states by the

Constitution has ceased to exist.”19 The plenary powers

of states under Article II, Section 1 are not abridged

just “because the operation of the system has not fully

realized the hopes of those by whom it was created.”20

B. The Lower Court Interpreted The States’

Role And Powers Under Article II, Section 1

Too Restrictively

Most states have exercised their plenary authority

under Article II, Section 1 to field electors who act

as agents21 of the states, bound by state law to the

McPherson, 146 U.S. at 28.

McPherson, 146 U.S. at 36.

McPherson, 146 U.S. at 35, 36.

As implemented since “the first election held under the

constitution,” voters “looked beyond these agents (electors)” and

“fixed upon their own candidates for President and Vice President;” electors are “mere agents” who “are not left to the exercise

of their own judgment.” 2 Story On The Constitution, § 1463 (5th

Ed. 1891); McPherson, 146 U.S. at 27, 36 (“state . . . acts . . . through

its electoral college” and electors are “chosen simply to register

electorate’s will in its selection of President and Vice

President.22 Inherent in the power to appoint agents is

the power to limit their authority23 and replace them if

they act outside the scope of that authority.24 This

the will of the appointing power in respect of a particular candidate”).

A minority of states, like South Dakota, do not formally

bind electors. Custom and practice in South Dakota have simply

dictated that electoral voting reflect the popular vote. Most states

have enacted specific mechanisms for binding electors, ranging

from removal, fines or automatic abdication to criminal liability.

The Constitution’s broad delegation of authority allows, even encourages, states to experiment with and settle upon a manner of

appointment suited to and accepted by its residents.

The lower court erred in finding that Micheal Baca’s “removal” from office conferred standing to challenge the constitutionality of Colorado’s binding statutes in federal court. To the

extent dictum in Raines v. Byrd, 521 U.S. 811, 821 (1997), hypothesized otherwise, it is not apposite here because Colorado voters

did not elect Micheal Baca; his name did not appear on any general election ballot. Colorado utilizes a “short form” ballot that

lists only the names of presidential and vice presidential candidates, not electors. A vote for a presidential candidate results in

the appointment of an unnamed slate of party-nominated electors

pledged to the party’s presidential ticket. Also, Baca was a state

not a federal officer. Fitzgerald v. Green, 134 U.S. 377, 379 (1890).

Per Smith v. Indiana, 191 U.S. 138 (1903), a state officer’s personal disagreement with a state policy he is charged with implementing does not confer standing to challenge (or jurisdiction to

hear) the constitutionality of that policy in federal court. Accordingly, this Court could grant certiorari to review and reverse the

lower court’s decision on the grounds that Raines does not confer

standing for Baca to challenge state law in federal court in light

of principles recognized in Smith and Fitzgerald.

Restatement 3rd of Agency § 301 (agent’s “authority . . . is

created by a principal’s manifestation to an agent that . . . expresses

the principal’s assent that the agent take action on the principal’s

behalf ”), § 306 (“agent’s actual authority may be terminated by:

system “has prevailed too long and been too uniform to

justify . . . interpreting the language of the Constitution as conveying any other meaning.”25

As noted by the lower court, Article II, Section 1 is

silent in regard to a state’s authority to remove and

replace rogue, ineligible or absentee electors.26 The

lower court’s approach to interpreting or resolving this

silence differs from Ray’s in significant ways that warrant review. Though the Constitution is to be interpreted

according to its text, the lower court relied inordinately

on extra-textual sources – such as Federalist 68 and

period dictionaries – to import meaning that is not

present.27 Federalist 68 and the adopted language of

Article II, Section 1 are not in agreement, and period

. . . (4) an agreement between the agent and the principal or occurrence of circumstances on the basis of which the agent should

reasonably conclude that the principal no longer would assent to

the agent’s taking action on the principal’s behalf . . . (5) a manifestation of revocation by the principal to the agent, or of renunciation by the agent to the principal . . . (6) the occurrence of

circumstances specified by statute”), § 309 (“agent’s actual authority terminates (1) as agreed by the agent and the principal

. . . or (2) upon the occurrence of circumstances on the basis of

which the agent should reasonably conclude that the principal no

longer would assent to the agent’s taking action on the principal’s

behalf ”) (2006).

McPherson, 146 U.S. at 27, 36 (where “ambiguity or doubt”

surround constitutional provisions, “contemporaneous and subsequent practical construction[s] are entitled to the greatest weight”).

Baca v. Colorado Department of State, Petitioner’s Appendix at 1, 78, 90 (Constitution is “silent” regarding the power of

states to remove electors after they have been appointed or to

strike their votes).

Utah v. Evans, 536 U.S. 452, 474 (2002).

definitions of “elector,” “vote” and “ballot” are by no

means incompatible with a system of pledged electors.28 Ray did not infill textual voids with partisan

Federalist doctrine or broad usages of textual terms.

Rather, in the absence of a “definite answer” to the

question of whether a state may exact pledges from its

electors, the Ray Court condoned the practice because

neither Article II, Section 1 (nor the 12th Amendment)

expressly prohibit it.29 The lower court took the opposite approach, forbidding Colorado from binding electors to their oath (or, it would seem, from imposing

other sensible, non-textual qualifications such as residency, age, competency or a clean criminal history)

Period dictionaries identify both broad and narrow accepted usages of the terms “elector,” “vote” and “ballot.” While the

lower court fixed on the broad usages, the narrower usages are

compatible with pledged electors. Both pledged and independent

electors “vote” in the sense of a “voice given and numbered,”

“speak[ing] for or in behalf of any person or thing,” and “determin[ing] by suffrage” the outcome of an election. Both pledged

and independent electors are “electors” in the sense of having “a

vote in the choice of any public officer” and “right to elect . . . a

person into an office.” Both pledged and independent electors cast

a “ballot” in the sense of registering a vote by a “ball or ticket.”

Baca, Petitioner’s Appendix at 102. Since service as an elector is

a voluntary act, states impose no unconstitutional handicap upon

that service by hewing to narrower, historical usages of terms like

“elector,” “vote,” or “ballot” to enforce a pledge law. Ray, 343 U.S.

at 229 (electors may “voluntarily assume obligations to vote for a

certain candidate”).

Ray, 343 U.S. at 224 (“Neither the language of Art. II, [§] 1,

nor that of the Twelfth Amendment forbids a party to require

from candidates in its primary a pledge of conformity”).

because of the absence of constitutional language expressly permitting it.30

The lower court rationalizes this opposite approach on the ground that Clause 3 of Article II, Section 1 describes the mechanics of voting in more detail

than Clause 2 describes a state’s electoral appointment

powers. “From the moment the electors are appointed,”

the lower court observed, “the election process proceeds

according to detailed instructions set forth in the Constitution itself.”31 According to the lower court, Clause

3 is “inconsistent with [removal] power”32 because it allegedly “provides no express role for the states after

appointment of its presidential electors . . . and the

Constitution affords them no other role”33 beyond their

Clause 2 appointment power. But since detail is incongruous with a broad delegation of authority like Clause

2’s, and Clause 3 is just as silent as Clause 2 in regard

to a state’s authority to enforce conditions of appointment once voting is underway, there is no reason to

analyze Clause 3 any differently than the Ray Court

analyzed Clause 2.

Baca, Petitioner’s Appendix at 89, 97 (absent “constitutional delegation to the states of power to add qualifications to

those enumerated in the constitution, such power does not exist,”

prohibiting binding electors to their pledges because the “Constitution provides no express role for the states after appointment of

its presidential electors,” the “Constitution affords [states] no

other role in the selection of the President and Vice-President”).

Baca, Petitioner’s Appendix at 98.

Baca, Petitioner’s Appendix at 99.

Baca, Petitioner’s Appendix at 97.

But Clause 3 is not altogether silent concerning

the states’ role after the appointment of its presidential

electors. Per Clause 3, the states conduct and preside

over the proceedings where votes are cast, certified and

transmitted to Congress. “The sole function of the presidential electors is to cast, certify, and transmit the vote

of the state for president and vice-president of the

nation.”34 Though they perform a federal function in

these proceedings, electors are state agents who derive

their authority from the “appointing power,” subject,

like any agent, to basic agency principles.35 Replacing

a faithless agent in the course of a proceeding presided

over by the appointing principal hardly seems incompatible with the active role in electoral balloting that

Clause 3 assigns to the states.

A Colorado elector who casts a faithless ballot36

has cast no ballot at all because he is not authorized to

make a selection. Indeed, the elector ceased to be an

Fitzgerald, 134 U.S. at 379.

Fitzgerald, 134 U.S. at 379 (electors are state officers);

McPherson, 146 U.S. at 27 (“[t]he state . . . acts . . . through its”

electors).

The lower court also reasoned that states were impotent to

enforce elector pledges because the 12th Amendment “did nothing

to prevent future faithless voting.” Baca, Petitioner’s Appendix at

111. But this reasoning cuts both ways; the 12th Amendment also

did nothing to prevent pledged electoral ballots, and Congress has

never declined to count a pledged ballot. Congress also counts the

ballots of electors, such as those from Colorado, whose names

never appeared on any general-election voting form, thus counting the ballots of electors whose identities, let alone their capacity

for “informed” and “discerning” decision making, were unknown

to voters.

elector the moment he formed the intent to act outside

the scope of his authority; the state has not “removed”

this elector so much as the elector has abdicated his

agency by resolving to act outside the scope of his authority.37 Under such circumstances, all that remains

is for the state simply to replace this elector, just as it

would (must, to prevent dilution of its electoral votes)

if an elector had committed a felony, died, failed to appear, moved out of state, been appointed to a federal

office [United States Senate or House of Representatives, cabinet, or the federal judiciary] or otherwise become ineligible to serve in the interregnum between

appointment and voting.

If the power to replace when circumstances dictate

is not inherent in the power to appoint, a state could

be disenfranchised in whole or in part if one or more

electors were to become ineligible, unavailable or unwilling to serve in the interval between appointment

and voting. In South Dakota, which has 3 electoral

votes, the inability to replace an ineligible, unavailable

or unwilling elector after appointment would diminish

the state’s electoral vote and voting power by 33% per

Restatement 3rd of Agency § 306(4), (5), (6), Note 19 supra.

See also Uniform Faithful Presidential Electors Act § 7(c) (“An

elector who refuses to present a ballot, presents an unmarked ballot, or presents a ballot marked in violation of the elector’s pledge

. . . vacates the office of elector”); Mich.Comp.Laws Ann. § 168.47

(2019) (refusal or failure to vote for the presidential and vice presidential candidates appearing on the ballot of the political party

that nominated the elector constitutes “a resignation from the office of the elector”); Neb.Rev.Stat. § 32-714(4) (2016) (presidential

elector who “attempts to present a ballot in violation of his or her

pledge vacates the office”).

lost elector. The historically close elections of 1876

(Hayes 185/Tilden 184) and 2000 (Bush 271/Gore 266)

demonstrate how the inability to replace even one

elector could throw an election.38

Until now, such irregularities have been prevented

by the accepted proposition that “[n]either the language

of Art. II, § 1, nor that of the Twelfth Amendment, forbids” the appointing power from setting eligibility criteria for service as a presidential elector, and replacing

an elector who, subsequent to appointment, becomes

ineligible, unavailable or unwilling to serve.39 But the

lower court has now divested states within its jurisdiction from replacing electors after appointment based

on reasoning that does not square with Ray.

While it is true that Clause 3 contains no express

provision for removal of an elector after appointment,

or for nullification of an elector’s selection of an unauthorized candidate,40 this is not the proper question.

Per Ray and McPherson, unless the Constitution “forbids” it, Article II, Section 1’s plenary power of appointment, and the state’s express role in presiding over

Binding electors serves as a prophylaxis against a scenario

that proponents and detractors of the electoral college would

likely agree is problematic: the inauguration of a president who

had won neither the electoral nor popular vote. A presidency made

possible by a faithless elector could generate significant controversy.

Ray, 343 U.S. at 225.

Baca, Petitioner’s Appendix at 97 (“Constitution provides

no express role for the states after appointment of its presidential

electors”).

electoral balloting, are “sufficiently comprehensive” to

encompass limits on the authority of state agents and

the inherent power to remove them for acting outside

the scope of their agency.41

A significant conflict of authority has now developed over the question of the liberty states possess in

setting qualifications and conditions of service for their

electors. Most states have chosen to formally bind their

electors, others have not. The lower court’s decision

nullifies binding laws in states within its jurisdiction,

and shrouds such laws in states outside its jurisdiction

in uncertainty. With a presidential election less than

one year away, clarity in this area is important to the

proper functioning of the electoral college. This case

provides a vehicle for resolving this conflict outside of

a fevered dispute over the outcome of a presidential

election.

------------------------------------------------------------------

CONCLUSION

Federalist 68 describes how Hamilton wanted

the electoral college to work, but other founders

loathed the idea of the people “resign[ing] their right

of suffrage” to a collegium electi of “informed” and “discerning” intermediaries.42 Instead of resolving this

“contrariety of views” in favor of one faction or the

other, the founders left it to state legislatures to adopt

McPherson, 146 U.S. at 27.

Republicus, Anti-Federalist 72, published March 1, 1788;

Hamilton (Publius), Federalist 68, published March 12, 1788.

the Hamiltonian model or another of their own choosing.43 “[F]rom the formation of the government until

now the practical construction of [Article II, Section 1]

has conceded plenary power to the state legislatures in

the matter of the appointment of electors,”44 including

the power to remove and replace them as circumstances dictate. Thus, in the interest of preserving traditional state autonomy and authority in this area,

this Court should grant certiorari and reverse the

lower court.

Respectfully submitted this 20th day of November

2019.

JASON R. RAVNSBORG

ATTORNEY GENERAL

Paul S. Swedlund

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

1302 East Highway 14, Suite 1

Pierre, South Dakota 57501-8501

605-773-3215

paul.swedlund@state.sd.us

McPherson, 146 U.S. at 27.

McPherson, 146 U.S. at 35.

COUNSEL FOR ADDITIONAL AMICI CURIAE

JIM HOOD

Attorney General

STATE OF MISSISSIPPI

DAVE YOST

Attorney General

STATE OF OHIO

AARON D. FORD

Attorney General

STATE OF NEVADA

KWAME RAOUL

Attorney General

STATE OF ILLINOIS

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

XAVIER BECERRA

Attorney General

STATE OF CALIFORNIA

MARK BRNOVICH

Attorney General

STATE OF ARIZONA

PATRICK MORRISEY

Attorney General

STATE OF WEST VIRGINIA

HECTOR BALDERAS

Attorney General

STATE OF NEW MEXICO

HERBERT H. SLATTERY III

Attorney General

STATE OF TENNESSEE

ALAN WILSON

Attorney General

STATE OF SOUTH CAROLINA

CURTIS T. HILL, JR.

Attorney General

STATE OF INDIANA

WAYNE STENEHJEM

Attorney General

STATE OF NORTH DAKOTA

DOUG PETERSON

Attorney General

STATE OF NEBRASKA

BRIAN E. FROSCH

Attorney General

STATE OF MARYLAND

MIKE HUNTER

Attorney General

STATE OF OKLAHOMA

KEVIN G. CLARKSON

Attorney General

STATE OF ALASKA

KATHY JENNINGS

Attorney General

STATE OF DELAWARE

MARK R. HERRING

Attorney General

STATE OF VIRGINIA

TIM FOX

Attorney General

STATE OF MONTANA

PETER F. NERONHA

Attorney General

STATE OF RHODE ISLAND

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