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mjs_DC's profile
Mark Joseph Stern
Mark Joseph Stern
Mark Joseph Stern
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@mjs_DC

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Mark Joseph SternVerified account

@mjs_DC

Staff writer @Slate. Courts and the law. Do you have a link to the ruling?

Washington, DC
markjosephstern.com
Joined November 2009

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    1. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

      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?

      13 replies 126 retweets 292 likes
      Show this thread
    2. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

      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 …

      11 replies 104 retweets 181 likes
      Show this thread
      Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

      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.

      7:06 AM - 13 May 2020
      • 49 Retweets
      • 204 Likes
      • Ang-GOTV🗳 Writerchick is Fully Vaccinated Janet Pfefferkorn Quentin Sam B sic mike Elisabeth Eyre Lissa
      10 replies 49 retweets 204 likes
        1. New conversation
        2. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          3 replies 15 retweets 97 likes
          Show this thread
        3. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          5 replies 58 retweets 295 likes
          Show this thread
        4. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          4 replies 13 retweets 103 likes
          Show this thread
        5. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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?

          3 replies 21 retweets 148 likes
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        6. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Mark Joseph Stern Retweeted

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

          Mark Joseph Stern added,

          This Tweet is unavailable.
          3 replies 14 retweets 188 likes
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        7. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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?

          2 replies 12 retweets 121 likes
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        8. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          3 replies 10 retweets 93 likes
          Show this thread
        9. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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?"

          4 replies 8 retweets 79 likes
          Show this thread
        10. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          3 replies 66 retweets 311 likes
          Show this thread
        11. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          4 replies 20 retweets 96 likes
          Show this thread
        12. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          ~my setup today~pic.twitter.com/RWwaW1R68Y

          6 replies 4 retweets 156 likes
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        13. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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."

          2 replies 6 retweets 62 likes
          Show this thread
        14. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          1 reply 17 retweets 102 likes
          Show this thread
        15. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          My colleague is OVER the Electoral Collegepic.twitter.com/ikav0di6ah

          9 replies 23 retweets 520 likes
          Show this thread
        16. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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 …

          3 replies 21 retweets 78 likes
          Show this thread
        17. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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.

          2 replies 9 retweets 65 likes
          Show this thread
        18. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          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 …

          3 replies 7 retweets 69 likes
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        19. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Gorsuch asks Purcell if there's a constitutional distinction between fining faithless electors (as Washington State previously did) and disqualifying their vote (as it does now). Asks if the latter is consistent with constitutional procedures that govern the Electoral College.

          2 replies 5 retweets 46 likes
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        20. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Kavanaugh asks Purcell: "If you're right about the electors not having this kind of discretion ... I wanted to get your take on a provision of Article II, Section I that says no senator or representative ... shall be appointed an elector." We're getting into the weeds here!!!!!

          4 replies 5 retweets 55 likes
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        21. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Every justice asked Purcell good questions, but I sense they were probing for a limiting principle, not seriously challenging his premise. Nothing altered my prediction that Lessig will lose, although it'll be interesting to see what limiting principles the justices identify.

          1 reply 10 retweets 60 likes
          Show this thread
        22. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          For better or worse, we now have ANOTHER hour of arguments over faithless electors. Why? Sotomayor has to recuse from the second case because she's friends with a faithless elector–litigant.https://www.cnn.com/2020/03/10/politics/sotomayor-faithless-electors/index.html …

          3 replies 12 retweets 59 likes
          Show this thread
        23. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          The court originally intended to hear both faithless electors case at once, argued in a single hour. After Sotomayor recused from one case, the court un-consolidated them, so we get two hours of arguments. Sotomayor won't participate this time around.

          1 reply 8 retweets 60 likes
          Show this thread
        24. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          ~The justices are taking a bathroom break in between arguments~

          5 replies 2 retweets 43 likes
          Show this thread
        25. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Colorado Attorney General Philip Weiser is up now, arguing against faithless electors. Roberts wants to know if there are ANY limitations on the power of the state to appoint electors or direct their votes. Again, a sensible hunt for a limiting principle.

          1 reply 6 retweets 55 likes
          Show this thread
        26. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          RBG: "Can you give us an idea of the practical consequences of ... a ruling against you?" Weiser: "The chaos that could result from upholding the 10th Circuit's ruling ... could occasion a constitutional crisis." Says bad actors could bribe electors with impunity.

          3 replies 9 retweets 58 likes
          Show this thread
        27. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Alito asks: Suppose the legislature is in the hands of a political party whose presidential candidate loses the statewide vote. Could the legislature simply remove electors pledged to the winning candidate and replace them? (Weiser says no.)

          1 reply 4 retweets 36 likes
          Show this thread
        28. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Weiser says a state legislature could tell voters before the election that their presidential ballots won't count, then appoint any electors it wants. But a state legislature could NOT hold a popular vote for president, reject the result, and appoint different electors.

          3 replies 5 retweets 45 likes
          Show this thread
        29. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Gorsuch: What would prohibit a state from passing a law that says all electors have to vote for the presidential candidate who support a specific position? The answer may be: nothing. So many of these questions really reveal problems with the Electoral College itself

          1 reply 18 retweets 87 likes
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        30. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Mark Joseph Stern Retweeted Rick Hasen

          BTW @rickhasen is absolutely right here: Both Washington State and Colorado are relying on principles laid out in Bush v. Gore, but won't say its name because ... well, you know.https://twitter.com/rickhasen/status/1260595395626852353 …

          Mark Joseph Stern added,

          Rick HasenVerified account @rickhasen
          Am I right that both the lawyer for Washington and for Colorado have cited a holding of Bush v. Gore without saying its name? (The principle is that once state gives voters right to choose the president, right is fundamental)
          2 replies 14 retweets 65 likes
          Show this thread
        31. Mark Joseph Stern‏Verified account @mjs_DC 13 May 2020

          Jason Harrow is now arguing on behalf of Colorado's faithless electors. He inches right up to saying, yeah, the system we're advocating is insane, but so is the Electoral College, so we need to abolish it via constitutional amendment.

          3 replies 11 retweets 43 likes
          Show this thread
        32. Show replies

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