The Electoral College votes for President on Monday, Dec. 19th. I’ve seen a lot of writers suggest that the Electors are supposed to be a rubber stamp, because they always have been, and the 29 states that force their electors to vote a certain way are just recognizing that fact. This is just plain wrong, and here’s why.
Caveat: IANAL, and basically none of this has ever been tested in court — but what I’m about to say ought to be true, even if I’m wrong.
People have good reason to expect their electors to vote the way state voted — but that’s not the same thing as having the right to force the electors to do so, or to punish them if they vote otherwise. The Constitution gives each state more than one electoral vote — roughly proportional to population, but downweighted to give smaller states a boost. That number is assigned in the Constitution to match the size of the Senate and House delegations. Even in 1789, it would have been possible to allow the state legislature to cast all the electoral votes as a block. It would have been possible to assign all the electoral votes to the outcome of the popular vote in the state. It would have been possible to assign each electoral vote to a respective Senator and House member. It would have been possible to give one electoral vote to the Governor, then just multiply it by #[Senators+Representatives]. There was no technological stumbling block to any of these proposals.
But the Constitutional Convention didn’t pick any of these ideas, even though they discussed most of them. The Constitution creates a specific office — the Elector — which exists for only one day every four years and has no responsibilities other than to vote for President and Vice-President, and to certify the vote total from each state to be transmitted to Congress. It says the state gets to choose the electors — but it doesn’t say anything else about the relationship. It assigns each elector one vote — it doesn’t give all the electoral votes to a single elector, or give weight N to the one vote coming from a state, or let Congress pick the President. It says absolutely nothing about the rights of states to bind Electors to a mechanically-driven outcome.
You can go two ways with this. The first is to say “if the Constitution is silent, the states can do anything.” That’s basically what the 29 states that bind their electors claim. The second is to say “the states can’t pass laws that make explicit features of the Constitution effectively meaningless.” Both of these traditions have strong backing in our nation’s history, but the second one generally wins in a fight. When it protects individual rights, it’s called “substantive due process”, but it applies more broadly as an interpretive principal. There is no purpose in having Electors if a state law can determine how they vote, and this is not some subtle point that would have gone unnoticed at a convention full of lawyers. The Electoral College must have been intended to exercise independent judgement.
There’s another reason to be certain that the Electors are not bound by state laws: neither are Senators. Senators were originally created as explicit Federal representation for a state, not for the general public. You might think that gives them less leeway to vote as they see fit, but you’d be wrong: in 1811, Senator Giles argued at length in the Congressional Record that he was not legally bound to follow the orders of the General Assembly of Virginia on how to vote in Congress. Before the 17th Amendment made the Senate popularly-elected, there are cases where a Senator was not reappointed by the legislature because of disobedience. I haven’t found any cases where the Senate refused to recognize a Senator’s vote that went against state instructions. And there are no cases where a Senator (or House member) has been recalled by the home state, because only the Senate has the power to end a Senator’s term early, by expulsion. By the Supreme Court case “U.S. Term Limits, Inc. v. Thornton”, the states don’t even have the power to create term limits or other state-specific qualifications for election to Congress.
The office of Senator is the closest Constitutional analogue to the office of Elector: both are representatives of the state, serving as delegates to a Federal body tasked with a Constitutional duty. And Senators cannot be forced to satisfy extra state-specific qualifications for office, cannot be recalled by the state for bad behavior, cannot be compelled in how they vote, and cannot be punished for their votes.
There is no reason to believe that Electors are any different. The 29 states that pretend they can compel the votes of their Electors are wrong. Constitutionally, they may not fine the Electors, they may not enforce the Electors’ private pledges to political parties, and they may not expel and replace recalcitrant Electors with more compliant substitutes if the votes go against some predetermined outcome.
The fact that they never have exercised independent judgement in 228 years means nothing more than saying the glass has never been broken on the fire alarm. The Electors are the only ones who can decide if the current circumstances constitute an emergency, and they have an absolute Constitutional right and duty to decide for themselves.