No. 17-1487 In the Supreme Court of the United States On PetitiOn fOr a Writ Of CertiOrari tO the United StateS COUrt Of aPPeal fOr the ninth CirCUit MOTION FOR LEAVE TO FILE AND
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QUESTION PRESENTED,A Washington State law threatens a fine for presi. dential electors who vote contrary to how the law directs. RCW 29A 56 340 2016 Petitioners are three 2016 presi. dential electors who were fined under this provision solely. because they failed to vote as the law directs namely for. the presidential and vice presidential candidates who won. a majority of the popular vote in the State,The question presented is whether enforcement of. this law is unconstitutional because, 1 a State has no power to legally enforce how a pres. idential elector casts his or her ballot and, 2 a State penalizing an elector for exercising his or. her constitutional discretion to vote violates the. First Amendment,TABLE OF CONTENTS,Question presented i. Interest of amici 1,Summary of the argument 2,Reasons for granting the writ 3. I This case presents an unusual opportunity for,the Court to decide a constitutional question of. national importance regarding elections in,circumstances that allow for unhurried. deliberation and full consideration of the,historical record 3. II The Court s analysis of the constitutionality of. state law constraints on federal electors must,include consideration of the deep historical. Conclusion 20,TABLE OF AUTHORITIES,Alden v Maine,527 U S 706 1999 11. Anderson v Celebrezze,460 U S 780 1983 6,Baca v Colorado Dep t of State. 935 F 3d 887 10th Cir 2019 2 9 10 13,Bush v Gore,531 U S 98 2000 4. D C v Heller,554 U S 570 2008 12,Davis v Fed Election Comm n. 554 U S 724 2008 6,Fishman v Schaffer,429 U S 1325 1976. Marshall J in chambers 6,Griffin v Burns,570 F 2d 1065 1st Cir 1978 8. Hoblock v Albany Cty Bd of Elections,487 F Supp 2d 90 N D N Y 2006 8. McCarthy v Briscoe,429 U S 1317 1976,Powell J in chambers 6. McPherson v Blacker,146 U S 1 1892 4,Ne Ohio Coal for Homeless v Husted. 696 F 3d 580 6th Cir 2012 8,Powell v McCormack,395 U S 486 1969 11. Ray v Blair,343 U S 154 1952 per curiam 5,Ray v Blair. 343 U S 214 1952 5,Roe v State of Ala By Through Evans. 43 F 3d 574 11th Cir 1995 8,Spencer v Pugh,543 U S 1301 2004. Stevens J in chambers 5,Summit Cty Democratic Cent Exec. Comm v Blackwell,388 F 3d 547 6th Cir 2004 6,U S Term Limits Inc v Thornton. 514 U S 779 1995 11,Williams v Rhodes,393 U S 23 1968 5. Constitutional Provisions,Md Const of 1776 Art XVIII 14. U S Const amend XII 16,U S Const amend XXIII 1 17,U S Const art II 1 14. Ala Code 1975 17 14 31 c 1975 7,Alaska Stat Ann 15 30 040 West 1960 7. Cal Elec Code 6906 West 1994 7,Colo Rev Stat Ann 1 4 304 5. West 2001 7,Conn Gen Stat Ann 9 176 West 1961 7,D C Code Ann 1 1001 08 g West 2017 18. Del Code Ann tit 15 4303 West 2019 7,Fla Stat Ann 103 021 1 West 2011 7. Haw Rev Stat Ann 14 28 West 1981 7,Mass Gen Laws Ann ch 53 8. West 1990 7,Md Code Ann Elec Law 8 505 c,West 2010 7. Me Rev Stat tit 21 A 805 2 1989 7,Mich Comp Laws Ann 168 47 West 7. Minn Stat Ann 208 43 46 West 2015 7,Miss Code Ann 23 15 771 West 1987 7. Mont Code Ann 13 25 304 307 4,West 2011 7,N C Gen Stat 163A 1231 West 2017 7. N M Stat Ann 1 15 9 West 1978 7,Neb Rev Stat Ann 32 713 2 714. West 2015 7,Nev Rev Stat Ann 298 065 3,298 075 2 b 2 West 2013 7. Ohio Rev Code Ann 3505 40 West 1969 7,Okla Stat Ann tit 26 10 102 109. West 2013 7,Or Rev Stat Ann 248 355 2,West 2001 7,S C Code Ann 7 19 80 West 1976 7. Tenn Code Ann 2 5 104 c West 1998 7,Utah Code Ann 20A 13 304 3. West 1995 7,Va Code Ann 24 2 203 West 2001 7,Vt Stat Ann tit 17 2732 West 1979 7. Wash Rev Code Ann 29A 56 340,West 2019 7,Wis Stat Ann 7 75 2 West 7. Wyo Stat Ann 22 19 108 West 1973 7,Other Authorities. 10 Annals of Cong 1801 15,13 Annals of Cong 1803 15 16. 41 Annals of Cong 1823 1824 17,11 Cong Rec 1881 19. 106 Cong Rec daily ed June 14 1960 17,115 Cong Rec daily ed Jan 6 1969 19. 163 Cong Rec daily ed Jan 6 2017 18,8 Reg Deb 1832 17. 9 Reg Deb 1833 17,Robert W Bennett Electoral College. Reform Ain t Easy 101 Nw U L Rev,Colloquy 1 2006 9. Robert W Bennett The Problem of the,Faithless Elector Trouble Aplenty. Brewing Just Below the Surface in,Choosing the President 100 Nw U L. Rev 121 2006 10,Julian P Boyd ed 36 Papers of Thomas. Jefferson 82 88 Princeton 1950 15,The Federalist No 64 John Jay George. W Carey James McClellan eds,The Federalist No 68 Alexander. Hamilton George W Carey James,McClellan eds 2001 13. Minnis v Illinois No 16 8052 Brief of,the Cato Institute Supporting the. Petition for Certiorari filed Mar 24,Nelson v Colorado No 15 1256 Brief of. Cato Institute Institute for Justice,filed Nov 18 2016 2. James Cheetham A View of the Political,Conduct of Aaron Burr Esq Vice. President of the United States,Denniston Cheetham 1802 15. Cong Globe 34th Cong 3d Sess 1857 19,Robert J Delahunty Is the Uniform. Faithful Presidential Electors Act,Constitutional Cardozo L Rev 165. Packingham v North Carolina No 15,1194 Brief of Electronic Frontier. Foundation et al filed Dec 22 2016 1,Alexander Gouzoules The Faithless. Elector and 2016 Constitutional,Uncertainty After the Election of. Donald Trump U Fla J L Pub,Policy 215 2017 10,Richard L Hasen Beyond the Margin of. Litigation Reforming U S Election,Administration to Avoid Electoral. Meltdown 62 Wash Lee L Rev 937,Richard L Hasen The Coming Reckoning. Over the Electoral College Slate Sept,4 2019 https slate com news and. politics 2019 09 electoral college,supreme court lessig faithless. electors html 10,To Amend the Act of August 12 1955. Relating to Elections in the District of,Columbia hearing on H R 5955. House of Representatives,Subcommittee No 3 on the Committee. of the District of Columbia 87th Cong,H R Rep No 86 1698 1960 17. Henderson v United States No 13 1487,Brief of Institute for Justice filed Dec. Vasan Kesavan Is the Electoral Count Act,Unconstitutional 80 N C L Rev. 1654 2002 19,Charles R King ed The Life and,Correspondence of Rufus King Vol VI. G P Putnam New York 1900 14,National Archives and Records. Administration U S Electoral College,Historical Election Results. https www archives gov federal,register electoral college scores2 html 9. Kiersten Schmidt and Wilson Andrews A,Historic Number of Electors Defected. and Most Were Supposed to Vote for,Clinton New York Times Dec 19. https www nytimes com interactive 20,16 12 19 us elections electoral college. results html 10,Geoffrey Skelley Are Blowout,Presidential Elections a Thing of the. Past FiveThirtyEight May 28 2019,https fivethirtyeight com features are. blowout presidential elections a thing,of the past 9. Harold C Syrett and Jacob E Cooke,eds 5 The Papers of Alexander. Hamilton 248 Columbia 1961 1987 14,INTEREST OF AMICI 1. Amicus curiae Michael L Rosin is a historian and, scholar of the Electoral College He has conducted exten. sive original historical research on the subject Rosin has. reviewed and analyzed historical source material includ. ing contemporaneous records that reflect the Founders. opinions and debates about the Electoral College later. debates regarding proposed and adopted constitutional. amendments and congressional debate on disputed elec. toral votes Rosin seeks to draw on his deep historical. knowledge to help inform the Court s consideration of this. critical constitutional question,Amicus curiae David G Post retired from his po. sition as I Herman Stern Professor at Beasley School of. Law Temple University in 2015 currently he is a Fellow. at the Center for Democracy and Technology a Fellow of. the Institute for Information Law and Policy at New York. Law School an Adjunct Scholar at the Cato Institute and. a contributor to the Volokh Conspiracy blog In addition. to numerous scholarly articles on a variety of topics Mr. Post has submitted amicus briefs to the Court including. a petition stage amicus brief in Minnis v Illinois No 16. 8052 Brief of the Cato Institute Supporting the Petition. for Certiorari filed Mar 24 2017 and merits amicus. briefs in Packingham v North Carolina No 15 1194, As required by Supreme Court Rule 37 counsel of record for all. parties have consented to the filing of this brief Counsel for amici. provided notice to counsel of record for all parties of the intention to. file this brief more than 10 days prior to its filing Further no counsel. for any party authored this brief in whole or in part and no person or. entity other than amici funded its preparation or submission. Brief of Electronic Frontier Foundation et al filed Dec. 22 2016 Nelson v Colorado No 15 1256 Brief of Cato. Institute Institute for Justice filed Nov 18 2016 Hen. derson v United States No 13 1487 Brief of Institute for. Justice filed Dec 12 2014,SUMMARY OF THE ARGUMENT, The Court should grant the petition in this case to. resolve a critical question concerning the election of our. nation s president and vice president whether the Con. stitution permits a state to mandate for whom presidential. electors must vote and to legally enforce that mandate. The Washington Supreme Court held below that states. authority to decide the manner and mode of appointing. presidential electors is absolute and includes the power. to limit or restrict electors votes Pet App 19 20a Its de. cision squarely conflicts with the Tenth Circuit s recent. decision in Baca v Colorado Dep t of State 935 F 3d 887. 10th Cir 2019 That conflict illustrates the need for this. Court to address and decide this issue before the next. presidential election, Granting review in this case which arises out of the. 2016 election will avoid the severe time constraints pre. sented by past cases related to the electoral process As. explained below the typical timetable for such cases is. measured in days By contrast the Court can decide this. case with the benefit of full briefing and argument in the. ordinary course And by doing so the Court will provide. much needed certainty well before the next election The. need for such certainty is paramount given the very real. possibility that this issue left unresolved will recur in the. context of an in process election with the outcome hang. ing in the balance,In addition unhurried review will be especially. beneficial here because the questions before the Court. exist against a rich nuanced historical backdrop As ex. plained in Point II below that history which was not. thoroughly explored by the court below strongly sup. ports petitioners position on the merits From the draft. ing and ratification of the Constitution through the ratifi. cation of the Twelfth and Twenty Third Amendments, congressional and other source material reflects a con. sistent understanding that individual electors enjoy dis. cretion of a constitutional dimension in casting their elec. toral votes That understanding is confirmed by Con. gress s longstanding practice of counting and accepting. votes cast by electors for candidates other than those. specified by state law or by electors pledges Accordingly. and in light of the reasons set out in the petition amici. respectfully submit that the petition should be granted. REASONS FOR GRANTING THE WRIT, I This case presents an unusual opportunity for the. Court to decide a constitutional question of,national importance regarding elections in. circumstances that allow for unhurried,deliberation and full consideration of the. historical record,This case provides an excellent vehicle for the. Court to decide whether states may constrain the votes of. federal presidential electors in advance of the next presi. dential election Because the State of Washington fined. these electors the case presents a live concrete dispute. But the election itself is settled That means the Court can. decide this issue in the usual course with time for full. briefing and without the distraction of a charged political. environment The Court should grant review and settle. this issue now for at least four reasons,First history teaches that courts including this. Court are often forced to decide serious constitutional. questions at a breakneck pace in post election disputes. Few tasks are more important for courts than ensuring. the legitimacy of democratic elections But legal chal. lenges that call into question the outcome of an election. usually must be decided with great urgency sometimes in. a matter of days,That was the case for example when the 2000. presidential election was disputed In Bush v Gore 531. U S 98 2000 the petition for writ of certiorari was filed. on December 9 2000 a stay issued the same day argu. ment was held on December 11 and the decision issued. on December 12 See id at 98 100 2,That same urgency marks the Court s prior deci. sions regarding the selection of presidential electors The. nineteenth century case of McPherson v Blacker 146. U S 1 1892 in which the Court addressed Michigan s. method of selecting electors was decided in a matter of. days The Court explained in McPherson that the applica. tion made on October 11 was granted at once in view of. the exigency disclosed upon the face of the papers and. heard that day Id at 4 It was decided just six days. Election related litigation has increased possibly substantially. since 2000 See Richard L Hasen Beyond the Margin of Litigation. Reforming U S Election Administration to Avoid Electoral Melt. down 62 Wash Lee L Rev 937 958 2005 describing factors that.
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