Faithless Electors and the Supreme’s….

“Electors, once appointed, are free to vote as they choose,” Judge Carolyn B. McHugh wrote for the majority of a divided three-judge panel. “While the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote or to appoint a new elector to cast a replacement vote.”

Such sharp disagreements in the lower courts make Supreme Court review more likely. So does the importance of the issue: It is hardly far-fetched that the next presidential election could turn on the votes of faithless electors.

Two things are reasonably clear. The first is that the framers of the Constitution and the language they used seemed to contemplate that electors would use independent judgment.

The second is that over time people have come to assume that electors are meant to vote for their parties’ candidates.

An 1892 Supreme Court decision captured this tension. “Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive,” Chief Justice Melville Fuller wrote. Over time, he added, “the original expectation may be said to have been frustrated.”

Alexander Hamilton described that original expectation in the Federalist Papers. “Men chosen by the people for the special purpose” of selecting the president, he wrote, “will be most likely to possess the information and discernment requisite to such complicated investigations.”

The Supreme Court these days is generally inclined to honor the original meaning of the Constitution, and the Tenth Circuit made a strong case that its language supports elector independence. The words of the relevant provisions, including “elector,” “vote” and “ballot,” Judge McHugh wrote, “have a common theme: They all imply the right to make a choice or voice an individual opinion.”……

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image…LATimes.Com