From the prior thread...
Since you like long posts... 😉
The Constitution doesn’t forbid the State’s from requiring the electors to vote for the popular vote winner. Therefore, the 10th amendment rules and that power belongs to the States. I think this statement doesn't hold when looking at the entirety of the Constitution.
The Constitution expressly gives the states the power to CHOOSE Electors, that's clear.
The 10th Amendment says that any power not expressly granted to the federal government belongs to the states and the people.
However, where it falls apart is with what it means to "vote." The whole concept of consent of the governed means that the vote is sacrosanct. We the People, as the lowest denominator in the federal triangle, retain the most basic power of a representative republic, which is the personal vote.
To say that a state can mandate how an individual is to vote is to undermine the whole meaning of the United States of America. I would argue that the 10th amendment prevents the federal government AND the states from forcing an individual person to vote a desired way. The right to vote is a right retained by the people, as the state is a collection of people and not an entity of its own.
When the Constitution refers to a state, it is referring to the legislature and governor of a state, who are people. The purpose of a legislature is to vote. There is no power that can force a person in a legislature to vote a certain way, and the legislature as a body has no power to force a citizen to vote a certain way.
State legislatures can constitutionally establish processes where Electors are chosen from competing partisan slates of party members predisposed to vote a certain way (the current winner-take-all process), but they cannot force an elector, once selected, to vote a certain way.
Those Electors retain their 10th amendment right to vote their conscience as their expression of consent of the governed.
It seems to me there are times, (only in business maybe?) when people are required to vote certain ways, whatever their belief. That may apply to Electors. It may require state laws to enforce. Whether the punishment could include negation and removal I’m not so sure now.
During primaries, delegates to the party nominating conventions are required to vote a certain way in the first round, but that is by party rule. The punishment is to be expelled from the convention and replaced by an alternate. Note that primaries are not Constitutional processes.
One could argue that "vote" is another of those terms in the Constitution that is not defined because everyone knows what voting is. Electors voting is in the Constitution, so via Article VI it is supreme Law of the Land. There is no federal or state law that can control a Constitutional power to vote. The vote-holder, in this case the Elector, has supreme power over how to vote.
As I posted earlier, the way for states to control influence an Elector's vote is to use their supreme power to choose the method of selecting Electors in such a way that produces Electors that are very highly likely to vote a desired way. That's what they do now with winner-take-all competing slates of party Electors, but the Electors still retain the power to become faithless.
The Constitution does NOT specify ‘freedom of conscience’ for the Electors. It says nothing.
Not true. It says they meet to "vote by ballot." "Vote" implies choice. "Choice" implies freedom to choose.
The question devolves to why having Electors at all if the states could simply have written their desire directly to Congress?
What's the point of mandating that 55 people in California meet to vote on something that the state could simply order up by fiat? I argue that the state cannot order by fiat how anybody can vote, including Electors.
If they can, it's not a vote.
First, you still haven't addressed anything about what it means to "vote." Is a vote a thing of conscience or is it a rote mindless action, to do as one is told? Is the latter what the Framers meant when they said that Electors vote by ballot?
Second, Electors voting is in the Constitution, it is not a moral argument. Constitutionally, it is supreme Law of the land, and an Elector's vote cannot be legislated if we agree that the first item (to vote) is an individual choice. Do you agree with this?
Third, and I think most important, "Faithless Electors" are only faithless so long as states choose methods where it can happen. Currently, the slate of candidates represented by the Presidential candidate's name is the method used, but what if a state chooses in the future to change the method?
What if 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 changes its method so that Electors run as candidates for the Electoral College? Let's take the extreme case for this thought exercise and say that California changes to this method. The Presidential candidates names are removed from the ballot and the true Electors are listed instead. California gets 55 Electors, so we can assume that hundreds of people might run to be an Elector.
Here, 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 55 out of the list, and the top 55 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?
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?
All these questions go away if we agree that a vote is a fundamental right of each citizen in any capacity via the 10th amendment, that is their own personal right of consent of the governed that cannot be mandated by law, whether they are Congressmen, state legislators, Electors, or ordinary citizens in the voting booth.
The issue is that the states have the power to choose the method of selecting Electors. I posed some different scenarios where there might not be faithless Electors at all, mostly when the Elector campaigns directly for the position.
If a state decides to allow direct election of Electors and a candidate for Elector does not pledge to vote for a candidate but instead appeals to the voter's sense of judgement, how can that Elector be faithless? How can the state bind the Elector's vote to anything?
This hypothetical Elector has promised to vote his conscience.
Maybe I didn't state it clearly at the beginning, but I think the ruling that a state can't bind an Elector is correct because of such a hypothetical as I just listed.
For me, it still comes down to the principle that a person's vote is his own franchise, and no law can compel him to give up his vote to the state. The Constitution says that Electors meet to vote, not meet to pass along the state's mandate.
Because of the actual wording of the 10th amendment, the States have the power to define the role of the Electors.
I don't agree.
The actual wording of the 10th amendment says that powers not granted to the federal government are retained by the states or the people. It doesn't specify whether states or the people come first in retaining rights, or whether states can take away rights retained by the people.
If a State gives Electors the power to vote for someone other than the nominee they were representing in the election...
The state doesn't give the power to vote for anyone to Electors, the Constitution does via Article II Section 1 and the 12th Amendment. The state only has the power to choose the method for selecting Electors. If the state tries to burden the method with bindings on the Electors' votes, wouldn't that be going beyond the establishment of a process limited to selecting Electors?
As I posted elsewhere, doesn't the principle of consent of the governed mean that a person's vote is his most basic right as a citizen, as that is his form of consent as yea or nay? If a state forces a citizen as an Elector to vote its way, isn't that a disenfranchisement of the citizen's vote as an Elector?
Doesn't the citizen, via the 10th amendment, retain the right to his own vote over the state's interest in the same?
I expected you to land on the concept of different kinds of votes. Your argument is that vote as a citizen for a candidate is not the same as a legislator's vote on a bill which is not the same as an Elector's vote for a President which is not the same as a juror's vote on guilt or innocence.
I'm saying that a vote is a vote is a vote. It is the individual's unique franchise in a representative republic no matter under what circumstances or in what capacity that citizen's vote is being called for. It is an inalienable right of liberty that an individual's vote is his own property.
Where I think you are wrong is when you speak of a "power to require a certain vote." There is no such power. The vote is the property of the citizen, not the state. To "require" that a vote be cast in a state-desired way, whether it's for a desired candidate, or a desired proposition, or to condemn a hated defendant at a trial, makes it no vote at all. It becomes something else if the citizen is not free to choose how that vote is cast.
Compelling a citizen to give his vote to the state to be cast at the state's direction is not a power of the state under the 10th amendment.
Let's take this and apply it to another Constitutional power.
Just as how the Constitution, in Article II Section 1, defines the Elector but not the process for selecting Electors (granted to the state), it also grants YOU a Constitutional power in the 5th, 6th and 7th amendments as a member of a jury of peers in criminal and civil trials.
Using your argument, we know that the Constitution gives YOU the power to vote on guilt or innocence in a trial. We also know that the state has powers for defining how jurors are selected. Is it your contention that the state, therefore, has the power to tell you how to vote on the jury? If the overwhelming sentiment of the community is that the defendant is guilty, can the state compel you to vote on the jury as the public sentiment indicates?
In rebuttal, the 6th amendment qualifies the jury as "impartial," the 5th amendment qualifies the jury as "Grand," and the 7th amendment is silent. If you agree that the 6th amendment "impartial" jury prohibits the state from legislating how the jury should vote, do you believe that the absence of a word like "impartial" in Article II Section 1 means that the state can treat Electors as partial and dictate how they must vote?
The Constitution is absent partiality in 5th amendment Grand Juries and 7th amendment civil juries; does this mean that the state can mandate how these juries must vote, but except only 6th amendment criminal juries?
Is the Constitution to be taken THAT literally, the Electors can be mandated to vote partisan, that Grand Juries and civil juries, due to the absence of the word "impartial" can be mandated how to vote, but that only criminal juries are free to vote without state interference?
Or do you believe, as I do, that the right to vote is inalienable, is the property of the citizen in any civil capacity, and is beyond the reach of the 10th amendment and the state to control?
My premise is that the Constitution offers several cases where citizens are tasked with voting (legislatively in Congress, electorally in the Electoral College, representatively at the ballot box, and judiciously on a jury). My thesis is that the vote is the property of the citizen in all cases.
We are discussing faithless Electors, those who vote against the pledge to the voters. You call it "those who claim to represent a particular nominee." I say that is a temporal thing, as Electors didn't always structure themselves this way, and there is no requirement that they must do so forevermore. In the original case where Electors were the "nobility" of their states, they were chosen to deliberate on the best candidates; they weren't pledged to any one of them, so they couldn't be faithless. They may be that way today with competing partisan slates, but the remedy is not to usurp their vote by the state.
Regarding juries, the parallel is there; it's called "jury nullification." Call it a "faithless juror," one where the jury acquits an obviously guilty defendant (OJ Simpson?) or where a holdout forces a mistrial. The opposite case, the directed verdict, is one where a defendant is deemed innocent by overwhelming evidence.
One might say that the National Popular Vote movement is a directed election, one where the state deems the winner based on overwhelming national sentiment. The NPV disenfranchises Electors entirely if the state votes opposite to the national popular vote, but is directed to go along. Should an Elector in such a state become faithless and vote the wishes of the state, as you say, or should that Elector follow the state's mandate and vote against the voters of their state?
