SCOTUSblog by Rebecca Green 4/24/2020
In a 2014 case called National Labor Relations Board v. Noel Canning, the Supreme Court blessed a method of interpretation known as “liquidation†that seeks to identify settled practice as a means of understanding ambiguous constitutional text. Since then, scholars like law professor Will Baude have elaborated on James Madison’s idea that resolving constitutional vagaries can be achieved through identifying “a regular course of practice to liquidate and settle [its] meaning.â€
The petitioners in Colorado Department of State v. Baca picked up on this thread, citing Noel Canning to argue that “well-established post-enactment understanding by the public [that electors perform a mere ministerial role], coupled with longstanding historical practice,†should be understood to establish that states may constitutionally penalize or remove defecting electors.
In a recent law review article, “Liquidating Elector Discretion,†I challenge this narrative, marshalling evidence that the opposite is true: that settled practice in fact assumes elector discretion.
What does a liquidation analysis entail? Drawing on Madison’s writings, Baude identifies three elements: (1) the presence of a discrete textual indeterminacy; (2) a course of deliberate practice; and (3) actual settlement of the ambiguity revealed by institutional and public acquiescence to the practice in question. What might this analysis reveal in resolving the constitutionality of electors’ exercising discretion? Let’s take each in turn.
Textual indeterminacyTextual ambiguity is clearly present. The 12th Amendment directs electors to “vote†by “ballot,†but does not settle whether electors must be permitted to exercise discretion when casting their ballots. Federal statutes add little meat to the bones on this question.
More:
https://www.scotusblog.com/2020/04/symposium-liquidating-elector-discretion/#more-293312
