Certiorari To The Supreme Court Of Washington

No. 19-465. Argued May 13, 2020--Decided July 6, 2020

When Americans cast ballots for presidential candidates, their votes actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge to support the nominee of that party. Relevant here, 15 States back up their pledge laws with some kind of sanction. Almost all of these States immediately remove a so-called “faithless elector” from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge.

   Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors), violated their pledges to support Hillary Clinton in the 2016 presidential election. In response, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had. The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected that claim, and the State Supreme Court affirmed, relying on Ray v. Blair, 343 U. S. 214. In Ray, this Court upheld a pledge requirement—though one without a penalty to back it up. Ray held that pledges were consistent with the Constitution’s text and our Nation’s history, id., at 225–230; but it reserved the question whether a State can enforce that requirement through legal sanctions.

Held: A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. Pp. 8–18.

  (a) Article II, §1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct.” This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker, 146 U. S. 1, 27. And the power to appoint an elector (in any manner) includes power to condition his appointment, absent some other constitutional constraint. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist (as Ray allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. Or—so long as nothing else in the Constitution poses an obstacle—a State can add an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.

  Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. Article II includes only the instruction to each State to appoint electors, and the Twelfth Amendment only sets out the electors’ voting procedures. And while two contemporaneous State Constitutions incorporated language calling for the exercise of elector discretion, no language of that kind made it into the Federal Constitution. Contrary to the Electors’ argument, Article II’s use of the term “electors” and the Twelfth Amendment’s requirement that the electors “vote,” and that they do so “by ballot,” do not establish that electors must have discretion. The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments. But even assuming that outlook was widely shared, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. Pp. 8–13.

  (b) “Long settled and established practice” may have “great weight in a proper interpretation of constitutional provisions.” The Pocket Veto Case, 279 U. S. 655, 689. The Electors make an appeal to that kind of practice in asserting their right to independence, but “our whole experience as a Nation” points in the opposite direction. NLRB v. Noel Canning, 573 U. S. 513, 557. From the first elections under the Constitution, States sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment. The electors rapidly settled into that non-discretionary role. See Ray, 343 U. S., at 228–229. Ratified at the start of the 19th century, the Twelfth Amendment both acknowledged and facilitated the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting. Courts and commentators throughout that century recognized the presidential electors as merely acting on other people’s preferences. And state election laws evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens. Washington’s law is only another in the same vein. It reflects a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen. Pp. 13–17.

193 Wash. 2d 380, 441 P. 3d 807, affirmed.

 Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, Sotomayor, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, in which Gorsuch, J., joined as to Part II.


On Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit

July 6, 2020

Per Curiam.

 The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

It is so ordered.

 Justice Sotomayor took no part in the decision of this case.

 Justice Thomas concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington, ante, p.


Certiorari To The United States Court Of Appeals For The Fourth Circuit

No. 19-631. Argued May 6, 2020--Decided July 6, 2020

In response to consumer complaints, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA) to prohibit, inter alia, almost all robocalls to cell phones. 47 U. S. C. §227(b)(1)(A)(iii). In 2015, Congress amended the robocall restriction, carving out a new government-debt exception that allows robocalls made solely to collect a debt owed to or guaranteed by the United States. 129 Stat. 588. The American Association of Political Consultants and three other organizations that participate in the political system filed a declaratory judgment action, claiming that §227(b)(1)(A)(iii) violated the First Amendment. The District Court determined that the robocall restriction with the government-debt exception was content-based but that it survived strict scrutiny because of the Government’s compelling interest in collecting debt. The Fourth Circuit vacated the judgment, agreeing that the robo- call restriction with the government-debt exception was a content-based speech restriction, but holding that the law could not withstand strict scrutiny. The court invalidated the government-debt exception and applied traditional severability principles to sever it from the robocall restriction.

Held: The judgment is affirmed.

923 F. 3d 159, affirmed.

 Justice Kavanaugh, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded in Part II that the 2015 government-debt exception violates the First Amendment. Pp. 6–9.

 (a) The Free Speech Clause provides that government generally “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95. Under this Court’s precedents, content-based laws are subject to strict scrutiny. See Reed v. Town of Gilbert, 576 U. S. 155, 165. Section 227(b)(1)(A)(iii)’s robocall restriction, with the government-debt exception, is content based because it favors speech made for the purpose of collecting government debt over political and other speech. Pp. 6–7.

 (b) The Government’s arguments for deeming the statute content-neutral are unpersuasive. First, §227(b)(1)(A)(iii) does not draw distinctions based on speakers, and even if it did, that would not “automatically render the distinction content neutral.” Reed, 576 U. S., at 170. Second, the law here focuses on whether the caller is speaking about a particular topic and not, as the Government contends, simply on whether the caller is engaged in a particular economic activity. See Sorrell v. IMS Health Inc., 564 U. S. 552, 563–564. Third, while “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” this law “does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers.” Id., at 567.

 (c) As the Government concedes, the robocall restriction with the government-debt exception cannot satisfy strict scrutiny. The Government has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, and the like. Pp. 7–9.

 Justice Kavanaugh, joined by The Chief Justice and Justice Alito, concluded in Part III that the 2015 government-debt exception is severable from the underlying 1991 robocall restriction. The TCPA is part of the Communications Act, which has contained an express severability clause since 1934. Even if that clause did not apply to the exception, the presumption of severability would still apply. See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477. The remainder of the law is capable of functioning independently and would be fully operative as a law. Severing this relatively narrow exception to the broad robocall restriction fully cures the First Amendment unequal treatment problem and does not raise any other constitutional problems. Pp. 9–24.

 Justice Sotomayor concluded that the government-debt exception fails under intermediate scrutiny and is severable from the rest of the Act. Pp. 1–2.

 Justice Breyer, joined by Justice Ginsburg and Justice Kagan, would have upheld the government-debt exception, but given the contrary majority view, agreed that the provision is severable from the rest of the statute. Pp. 11–12.

 Justice Gorsuch concluded that content-based restrictions on speech are subject to strict scrutiny, that the Telephone Consumer Protection Act’s rule against cellphone robocalls is a content-based restriction, and that this rule fails strict scrutiny and therefore cannot be constitutionally enforced. Pp. 1–4.

 Kavanaugh, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Alito, J., joined, and in which Thomas, J., joined as to Parts I and II. Sotomayor, J., filed an opinion concurring in the judgment. Breyer, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Ginsburg and Kagan, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined as to Part II.