I begin with the expectation that "faithful" is only relevant to the method of choosing Electors in the first place. It is possible for states to choose methods of selecting Electors where there is no prior obligation or expectation how they will vote, which makes the question of "faithless Electors" moot.
I admit that we are currently not using one of those methods. I question whether it is wise for the Supreme Court to make a ruling on something that is potentially transient, unlike ruling on something that is permanently fixed in the Constitution, like the meaning of "natural born citizen," or limits on free speech, or how wide is the right to keep and bear arms.
To your point, I would ask if which of a faithful or faithless Electoral College is expected to be the norm? In our history, the faithless Elector has been rogue, one or two in a controversial election, none in most. I think that the current hysteria over faithless Electors is more of a psyops than an expectation, a media putsch to plant the thought that a faithless Elector is a hero and not an aberration. It is a call for members of the Electoral College to de facto impeach and convict the President as a last hope.
It is hard for me to say whether faithful or faithless or neither Electors would damage the standing of states. I still believe that the state mandating how a citizen casts his vote is the greater danger.
-PJ
Thanks for your comments and your clarity. I will watch and wait for further developments in this matter. It might have been better had the SCOTUS dodged this one. Only time will tell.
Good discussions but I think to me the solution is clear.
First I start with the constitution and I am an originalist. As Yo-Yo pointed out in post 41, there are 2 elements to this. First is Article II Section 1 where it designates the number of electors for each state. This affirms the electoral college rather than the popular vote. To change that you need to change the constitution.
The 12th Amendment (1804) notes the formality of the electors reporting to Congress and I agree is silent on how they are appointed and who they must vote for. This appears murky however, the contextual basis for the this amendment was to remedy the problems with the 1800 election - and concerns clarification about voting for president and vice president. While it mentions electors (IMO as a tool - I think it was logistics of communication as it was known then) there are no special rights for them. Consider the timeframe where only persons of privilege could vote, to endow electors with privilege to overrule the votes of the people who voted for president seems unconstitutional based on subsequent amendments.
As an originalist, I am totally comfortable with a ruling that negates electors and substitutes electoral votes and do not consider it a rewrite of the constitution. It affirms the states powers in the count per Article II Section 1. It does not practically affect the 12th amendment.
What is the purpose of having electors rather than electoral votes? Electors are not how people vote when they vote for president.(What percent of people know the elector they are voting for 5 minutes after they vote - even if the name of the elector is noted on the ballot? Almost none.)
As I pointed out, the possibility of mischief in the electoral count is huge. No one has effectively countered my risk to the system by the examples that I gave which I will reiterate.
Consider a 270-268 outcome but 2 electors are either (or both) threatened or given large sums of money - say $25 million to change their vote. What is the rationale for allowing this possibility? It is insane. While the risk exists on both sides (which is equally wrong), I contend that the risk is greater for the Rs. Consider 2020. Assume Trump wins 270-268 and the D wins the popular vote (as voter fraud is rampant). What do you think will happen if Soros pays off 2 electors in some secret bank account and the votes are changed? What would the media do? You know the spin that would be created - impeached president, popular vote so the end result is fair. Would there be investigations in the new administration on these electors - not a chance? Would we violently recreate- I doubt it - perhaps some but it would be temporary and further tempered by MSM and worse by RINO squishes.
I ask the question - why allow the possibility for this to happen?