Both of you make good arguments.
Political Junkie, when it comes to the right to vote one’s conscience, the one major difference between an Elector and any other office holder (Representative, Senator) is that the office holders are elected by a vote of the people to whom they are supposedly accountable. A vote of conscience by the office holder is subject to affirmation of the voters at the next election.
The Elector is “(s)elected” by the party executive committee or similar group, which is not elected by all its party members across the state. It all starts at the precinct level and only with those who get out of their lounge chairs and show some interest in party politics. Only some of those at the precinct make it to the state executive committee. The only “real accountability” for the elector then is to the active party members who picked him, i.e. the party’s state level executive committee. Double cross them and your chances of being an elector or active executive committee member is over...but the damage is done. Therefore, the Elector’s right to a “vote his conscience” is not the same in the Constitutional sense as an elected official because of how he got his position and is not accountable to be elected by the whole party.
In addition, people who belong to the other party who cross over in their vote or are independents who support the party’s candidate ... what rights do these voters have to know that “their Elector” will vote as they did should their vote end up in the majority? An elector’s “vote of conscience” would nullify the exercise of their vote, and the elector is never to be held accountable for such an act. The voters have no redress. This may be where the answer to this whole thing is - the right of the individual voters to know their vote will be counted via the Elector should their candidate win supersedes the right of the Elector to vote his conscience.
The practical side of this - party people are party people and are expected and will drive over a cliff for the party. Having had over 10 years experience at the state level, I will admit there are a few really loose screws in the party, but the nuts are known and would not be put in such a position at all costs. The risk here is more with the demokraps because they really are a party of nuts, a very fractured party of separate tribes that their leaders are trying to keep together. I can see they are more at risk here should the court hold that the elector may vote his conscience. Despite such a ruling, the party will still do its best to choose its electors who will drive over the cliff for the party.
What if, for example, a state changes its method to something like Electors being nominated and voted on by the state's legislature? The majority party would likely get the Electors they want; what would a faithless Elector be in this case? If we defined "faithless Elector" to be someone who goes against the popular vote, would we now have a new kind of faithless Elector who goes against the majority party of the Legislature?
Or, what if a state were to changes its method of selecting Electors to an open ballot for electors? Now, in a state like California it might seem ridiculous to have 55 Elector races with three to five candidates running for each of them. But in a smaller state with 3 to 5 Electoral College votes, it could be possible to have actual Elector elections instead of single partisan slates.
In the case of actual Elector elections, it would be up to each candidate for Elector to campaign, perhaps to pledge to vote for a candidate, or to instead give a resume of qualifications for why (s)he is qualified to be an Elector. The voter would then choose however many the state has out of the list, and the top statewide vote-getters become Electors to the Electoral College.
What would a faithless Elector look like in this case? Would it be someone who pledged to vote for one candidate, but voted for another? What about the Elector who didn't pledge, but instead appealed to their qualifications as a judicious person? Can this person even be faithless at all?
So, the concept of a faithless Elector is not a uniform thing that can be adjudicated because it is situational. If a court were to rule the other way (that states can bind Electors), then does that also bind states from never using their Constitutional power to choose the method of selecting electors again? What about a future case where some states bind Electors and others do not? Is that a 14th amendment equal protection issue? Must all Electors be bound by state instructions or none of them?
One more thing: The 12th amendment says this:
The Electors shall meet in their respective states, and vote by ballot ...and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;The reasonable person has to assume that if the Electors were to "seal" the votes, this means it was meant to be kept secret until revealed at a joint session of Congress.The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
Why seal the votes if the state was to have an oversight on the results and a chance to negate? How could the state punish faithless Electors after the votes were revealed to a joint session of Congress at least a month later?
Any ruling from the Supreme Court could not possibly be relevant because the Constitution says that nobody knows the results of the Electoral College votes until they are opened in front of the entire Congress. At that point, there is no opportunity for a state or a court to intervene.
-PJ
p.s. side note: consider the California recall election of Gray Davis in 2003. There were 135 candidates on the recall ballot, so having a ballot with many candidates for the Electoral College is not impossible.