I'm pleased to share a brief I filed in Baca v. Colorado Department of State, a Tenth Circuit case concerning the power of state legislatures to cabin the discretion of presidential electors. You can view the brief here. It's part of a larger project on some archival research on original practices of the states concerning presidential electors--but, alas, the litigation calendar does not await the academic one!
From the Summary of Argument:
The text of the Constitution offers little about the scope of state authority to regulate presidential electors. And there is little judicial precedent about the proper scope of authority of states regulating presidential electors. See, e.g., Ray v. Blair, 343 U.S. 214 (1952). But there are extensive practices in states and in Congress—including practices at the time of the ratification of the Twelfth Amendment—that may help this Court determine the liquidated meaning of these constitutional provisions. Cf. The Federalist No. 37, at 236 (James Madison) (J.E. Cook ed., 1961).These state and congressional practices reveal three conclusions. First, presidential electors have no right to anonymity when casting their ballots. Second, states have the power to replace presidential electors and levy fines on presidential electors, even after those electors have been selected. Third, Congress holds the power to scrutinize and even reject the electoral votes. In 2017, however, Congress counted Colorado’s electoral votes, and this Court has been asked to revisit a decision reserved to the judgment of Congress. When this Court decides this case, it should interpret the Twelfth Amendment through the practices of the states and of Congress.