1. The faithless-elector decision is, its legal merits aside, a healthy development for the fall elections. States can, of course, allow faithless electors, but long tradition has taught Americans & their candidates to assume that the winner of a state's vote gets its electors.
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3. Notable that the Court - yet again - does not cite Bush v Gore, but its treatment of the faithless elector laws is consistent with the broad reading of Article II legislative power that was the basis for the conservatives' concurrence in Bush v Gore.
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4. The electoral college has, frankly, departed from its original design, but its value as presently practiced comes from its two centuries of tradition in choosing the American head of state - the oldest continuously elected head of state on earth.
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5. And some of the reasons why the electoral college still works are part of its original design - they're just not completely coextensive.
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6. One state - South Carolina - had electors directly appointed by the state legislature all the way to the Civil War. Which would cause a national uproar today, but is consistent with broad legislative control.
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7. (Of course, that is not to say that South Carolina in 1860 did not cause a national uproar, but that's a different thing)
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8. There is much to be said for the Court's view that post-1787 tradition is at least partly incorporated in the electoral college by the passage of the Twelfth Amendment in 1804pic.twitter.com/skgBgNNMSH
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9. Where the Court is on more unsettled ground is the remedy - i.e., what states can do to enforce the ban on faithless electors. But the Constitution being silent on that, the combination of delegation to state legislatures w/residual state power carries some weight.
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10. "Electors contend that elector discretion is needed to deal with the possibility that a future presidential candidate will die between Election Day and the Electoral College vote....We do not dismiss how much turmoil such an event could cause." That happened in 1872.
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11. As I read the opinions, Thomas & Gorsuch, by vesting all residual authority over electors in the state legislature, would give legislatures the power to follow, say, the national popular vote compact. Kagan's Art II analysis should, too, but...
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12. ...Kagan's opinion has some escape hatches talking about tradition, the power of the popular vote, other clauses in the Constitution. Its logic makes the state legislatures supreme, but maybe not unchecked:pic.twitter.com/SnJGM8IPHp
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