A Backward- and Forward-Looking Assessment of the Supreme Court’s “Faithless Elector” Cases: Part One in a Two-Part Series

VIKRAM DAVID AMAR

In this first of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector” cases, Illinois law dean and professor Vikram David Amar expresses disappointment that the majority opinion—authored by Justice Elena Kagan—and concurring opinion—by Justice Clarence Thomas—are not as well reasoned or careful as they could be. Amar points out some of the ways in which the opinions fall short, noting some of the arguments that merited more discussion, or at least more thorough consideration.

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In re Republican Party of Texas

Docket: 20-0525

Opinion Date: July 13, 2020

Judge: Per Curiam

Areas of Law: Election Law

The Supreme Court dismissed for want of jurisdiction the petition for writ of mandamus brought by Republican Party of Texas (Party) directing the City of Houston and Houston First Corporation "to perform their obligations" in connection with the 2020 State Convention after Houston First terminated the parties' agreement to license the George R. Brown Convention Center to the Republican Party for the convention, holding that the petition did not properly invoke the Supreme Court's mandamus authority. Houston First's termination letter invoked a force majeure clause in the parties' agreement and cited the COVID-19 epidemic in Houston. The Party sought to compel the City and Houston First to perform their "duty imposed by law" in connection with he holding of a political party convention under Tex. Elec. Code 273.061. The Supreme Court denied relief, holding (1) the "duty imposed by law" in section 273.061 is limited to a duty imposed by a constitution, statute, city charter, or city ordinance; and (2) because Houston First's only duty to allow the Party use of the Center for its Convention is under the terms of the parties' agreement, the Party's petition did not properly invoke the Supreme Court's mandamus authority.