So says Carolyn Shapiro, associate professor at IIT Chicago-Kent College of Law, where she is co-director of the Institute on the Supreme Court of the United States.
Earlier this week, in a New York Times op-ed, Texas presidential elector Chris Suprun announced that he would not be casting his vote for Donald Trump. Even though Texas voters chose Trump, Suprun—along with a small group of electors from around the country calling themselves “Hamilton Electors”—will vote for a yet-to-be-identified compromise Republican. As Suprun explained in his op-ed, and as I and others have detailed elsewhere, Donald Trump’s conduct since the election has demonstrated that he is dangerously unqualified and unfit to be president.
Can electors legally do this? While the nearly universal expectation is electors’ votes will reflect the popular vote in their states, the Constitution doesn’t require them to. As others have explained, Alexander Hamilton’s justification for the Electoral College in Federalist No. 68 shows that the Framers intended for electors to exercise their own judgment when necessary.
Many states, however, have laws that prohibit these so-called “faithless electors” (perhaps a better term would be “conscientious electors”) from bucking the state popular vote. This week, two electors filed suit in federal court arguing that Colorado’s version is unconstitutional. (Hillary Clinton won Colorado, but the plaintiffs hope that a victory in their lawsuit will effectively invalidate all such laws, allowing electors in Trump states to defect.) In addition to arguments based on the Framers’ intent, there is a strong argument based on constitutional structure and text, and on Supreme Court precedent, that these electors should prevail.
The Constitution gives the states authority over how to choose electors. Article II, Section 1 provides that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…” But the Constitution does not authorize states to tell the electors, once selected, how to vote.
The Twelfth Amendment, which was ratified in 1804, spells out the electors’ duties in more detail. And it, too, defines the duties of electors without giving the states or state officials any role in defining or enforcing those duties. “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President …,” it says, and then goes on to explain that the electors should each cast two ballots: one for president and one for vice president. The electors, and only the electors, are directed to count, certify, and seal their votes, and to send the results directly to Washington. This allocation of responsibilities suggests that the Framers wanted to insulate the electors from the states’ influence or interference once they are appointed.
See here for the background, and be sure to read the rest. I kind of doubt Dan Patrick’s effort to bound electors will go anywhere, mostly because I doubt he’ll care enough to spend time and effort on it when he has much bigger fish he wants to fry, but you never know. What I do know is that I welcome the conversation about the role of the Electoral College, both as originally envisioned and in today’s world. Either we own and embrace what it was designed to do, or we should admit that it’s an anti-democratic anachronism and get rid of it.