If we don't prohibit faithless electors, then we might as well just elect the president by popular vote.
Which is what some people in America now want. But by the same token, if electors are required to vote according to some presumption, then why have actual human electors at all? Why not just apply the formula given in the constitution for the apportioning of the electors and let the President and Vice President be elected by simple arithmetic?
If my vote is going to count for something, then I want to be sure that my elector is required to vote the will of the people in his or her district.
Which would be the effect of the direct popular vote, absent any actual human electors. The constitution imposes little policy on how a state's legislature may choose their electors or how those electors must vote. The notion of a "pledged" elector evolved later -- and not unreasonably. Each state has nearly full authority over its electoral delegation. A state could, for example, legislate that the sitting governor gets to appoint the electors without ever consulting the people. Another state could legislate to hold a lottery and draw its electors at random. At the constitutional level, nothing at all says that the electors' votes need to have anything to do with the will of the people. In fact, it rather implies that they shouldn't.
Prudently enough, every state somehow ties its electoral vote to some canvass of its inhabitants. This is because, as you rightly point out, it's the democratic way. And if a state decides to do that by allowing electors to be themselves elected by direct suffrage, it would have a very difficult time doing that without requiring candidates for elector to pledge their votes. The original intent was that you would campaign to be an elector based on your judgment and impartiality, not who you planned to vote for. The pledged elector -- and its more refined offspring, the partisan elector -- is a consequence of what is obviously the most democratic way for a state to choose its electors, under the non-Federalist interpretation that the will of the people should be preserved. And it holds up in court.
The Supreme Court just recently granted
certiorari for a case asking whether a state can punish faithless electors. The constitutionality of this hasn't yet been tested, although many states have such a law. The only thing we've tested so far is whether the state can required the candidate elector to pledge his or her vote prior to being given the job. This is more of a problem than it seems because the 12th Amendment requires the electors to vote by ballot (by which we understand a secret ballot). Requiring a candidate elector to announce his intended vote seems to undermine that part. But just as ordinary citizens are not barred from revealing their vote -- intended or actual -- electors for President are not barred from announcing how they intend to vote. The first question the Court had to answer was whether a state could
require a candidate to do so.
It can, because no one is coerced to be an elector. A candidate presenting himself to his secretary of state to be an elector does so voluntarily. And if he does it on behalf of a party, the party can make him submit to whatever qualifications they deem appropriate -- including, obviously, a pledge to vote for that party's candidates.
Where we take a turn is in the spirit of the 12th Amendment, which was always to say that electors were supposed to be fair, non-partisan, independent judges of who should hold the highest offices in the United States. Reading the Federalists, one is struck by the deliberate and painstaking design that went into the electoral college, anticipating a number of potential evils and prescribing remedies for them. And by the early 1800s it had all flown out the door.
The Framers directly considered the possibility that the will of the people would simply be wrong. The safety-net feature of the electoral college was an integral, important part of why it was created. And, paradoxically, it's the linchpin of upholding the pledge laws. An candidate-elector's pledged vote may be required of him as a condition for the party he represents to certify him as such to the state, but that's solely a matter for the candidate and the party. Once elected, the elector becomes a functionary of the United States and does not depend further on the party. Once convened with his other electors, he could vote his conscience in secret. So no constitutional principle is impugned in requiring the pledge. Requiring the
vote, however, will run afoul of Art. II Sec. 1 of the constitution and the whole body of the 12th Amendment.
Basically we're on the brink of deciding whether to abandon the whole quaint safety-net principle of the electoral college. Whether that's a good idea or not is anyone's guess, but a lot of people were thinking about it in 2016. As this august group demonstrates, it's possible to hear reasoned arguments on both sides of the issue. By the time of the infamous 1824 election, the electoral college had pretty much run off the rails and become dominated by pleged partisans. So given that this is how we've done it for nearly 200 years, is it okay to enshrine it as a
required way of doing it?
Your statement is pretty clear. You desire a certain person to be President, and you intend your vote to have the effect of electing that person without anything going wrong between you and that. I wager that's probably how quite a lot of modern Americans think. So I guess to revise my argument above, we should choose either one picture of the electoral college or another. If we want to retain the safety net, then we should go the full way toward keeping it there, which means permitting electors to disagree with the voters in their states. If we want to make the election of the President more directly popular, then we should get as close as we can to that without having to repeal the 12th Amendment.
