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.
Interesting points...Do you feel there is a need for the Electoral College, at all?
My guess is that the use of the word “sealing” has to do with protecting against fraud in the transmission of the electoral vote being transmitted to Congress rather than in protecting the elector’s right to vote his conscience.
From the National Archives ....
“Choosing each State’s electors is a two-part process. First, the political parties in each State choose slates of potential electors sometime before the general election. Second, during the general election, the voters in each State select their State’s electors by casting their ballots.”
....
“During the general election your vote helps determine your State’s electors. When you vote for a Presidential candidate, you aren’t actually voting for President. You are telling your State which candidate you want your State to vote for at the meeting of electors. The States use [the popular vote] to appoint their electors. The winning candidate’s State political party selects the individuals who will be electors.”
....
There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States. Some States, however, require electors to cast their votes according to the popular vote. These pledges fall into two categories—electors bound by State law and those bound by pledges to political parties.
The U.S. Supreme Court has held that the Constitution does not require that electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some State laws provide that so-called “faithless electors” may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No elector has ever been prosecuted for failing to vote as pledged. However, several electors were disqualified and replaced in 2016 for failing to vote as pledged.
It is rare for electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of electors have voted as pledged.”
From Federalist Paper #68 dealing with the election of the President: “[T]he Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.”
The pair of cases before the Supreme Court now is to decide whether Colorado and Washington state laws may require presidential electors to vote for the presidential candidate that won the statewide vote.
Again, recall the National Archives states:
“The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No elector has ever been prosecuted for failing to vote as pledged. However, several electors were disqualified and replaced in 2016 for failing to vote as pledged.”
This will be an interesting case, as it might be more about State rights and the rights of the voters to have their vote count through the elector, than it is about the right of elector to vote his conscience, in part because of how the elector “got on the ballot” in the first place - via making a pledge to the party. What the SC holds here will be studied to see if one can guess how it might rule when the next case on the electoral college - state compacts - comes before it.