Anti-Trump
forces are apparently gearing up for an all out legal war against
the Electoral College. They plan to file legal action in all 29 states which
have laws that prohibit electors from “voting their conscience.” However,
those encouraging electors to abandon the will of the people are wrong, and are
violating the basic principles of democracy.
In
the seminal decision of Ray v. Blair, the Supreme Court made clear
electors act at the privilege of the state that empowers them, and do NOT enjoy
any special right to vote as they please.
Article
II, section 1 of the Constitution gives states the rights to select their
electors as they please, including a right to require party and candidate
loyalty, and the concomitant authority to strip an elector of participation in
the electoral college for failure to honor that pledge of loyalty to the party
nominee. In so doing, the Supreme Court reversed the Alabama state supreme
court, and rejected the idea that an elector had any Constitutionally protected
right to vote in the electoral college as he or she chose.
Electors
only “act by authority of the state.” Ray v. Blair, 343 U.S. at 224 (1952). The
Constitution itself gives such power to the states without restriction or restraint.
“Neither the language of Art. II, § 1, nor that of the Twelfth Amendment
forbids a party to require from candidates in its primary a pledge of political
conformity with the aims of the party.” The “suggestion” of some
“assumed” elector choice to ignore the state’s limitations on his office was
“impossible to accept” as some intention of the founders. As the court noted:
“history teaches” just the opposite, as electors “were expected to support the
party nominees.”. Indeed, the Supreme Court labeled such faithless electors a
“fraudulent invasion” for a reason.
Other
legal scholars have recognized the elector as a ministerial office, not a
discretionary one, whose authority is constricted to what the state compels of
him. The famed scholar Joseph Story himself,
as cited by the Supreme Court, referred to the electors as historically treated
as “agents” of the state, not independent actors, and faithless electors as
“dangerous.” (Story wished it were otherwise, but did not let his wishes blind
him to the law as it was). Effectively, a state could choose to empower
electors, or strip them of any discretionary power, as they saw fit.
Either
way, that is a right of the state, not the elector. Supreme Court precedent,
legal history, and basic principles of both democracy and agency dictate as
much. Those encouraging electors to act outside their authority, nullify their
own vote, make perjurers of themselves (for those who signed under oath their
pledge of support to their party nominee), and violate the basic precepts of
democracy serve neither the law nor democracy. Those electors who even think of
such an unlawful coup risk far more.
Robert
Barnes is a California -based attorney whose practice focuses on tax defense and First Amendment law,
