Why the Constitution mandates that presidential electors exercise best judgment

[Elderberry]

SCOTUSblog by Rob Natelson 4/23/2020

Symposium: Why the Constitution mandates that presidential electors exercise best judgment

A central part of our Constitution’s intricate and carefully balanced presidential election system is the power, and duty, of presidential electors to vote for those candidates they deem most qualified. States purporting to convert electors into marionettes are trying to amend the Constitution while evading proper amendment procedures.

The Constitution created a three-tiered presidential election structure: (1) choice of electors in their respective states, (2) voting among electors for president and vice president and (3) if no candidate wins an absolute majority of electors, run-off elections in the House of Representatives for president and in the Senate for vice president. These elements were designed to work as parts of an integrated whole.

Modern writers almost invariably understate the painstaking process that produced the Constitution’s presidential election system. Some claim it was designed purely to protect slavery, or to protect small states, or because of the framers’ alleged distrust for democracy. In fact, slavery played almost no role in the deliberations. Instead, the framers balanced a long list of other factors. These included, among others, guarding against toxic regionalism, protecting federalism, ensuring that the victorious candidate enjoyed wide popular support, ensuring that the victorious candidate had the qualifications to perform in office, avoiding mob-like behavior and protecting against foreign influence. As James Wilson of Pennsylvania later remarked, creating the presidential election system was the framers’ most daunting challenge. It also was among their greatest accomplishments.

The Constitution enlists the states in presidential elections by empowering each to choose its electors in such manner as its state legislature directs. This is not a 10th Amendment power reserved for the states or the people but rather what the Supreme Court calls a “federal function” derived directly from the Constitution—much as Congress derives its authority directly from the Constitution. Once chosen, presidential electors also exercise federal functions. Like candidates for Congress, candidates for elector may make campaign promises. Like members of Congress, moreover, once chosen, an elector may vote according to his judgment exercised in light of facts then available.

The evidence that the Constitution lodges discretion in presidential electors is overwhelming. It can be summarized in eight separate points:

More: https://www.scotusblog.com/2020/04/symposium-why-the-constitution-mandates-that-presidential-electors-exercise-best-judgment/#more-293263

[EdinVA]

Amusing..... the problem is that every piece that I have read on what the constitution says/means always argues the definition of "is" rather than consider that in the 1790's, communications between the states and capital took months, not hours.  By the time a delegate left a Midwestern state with the  will and intent of the state citizenry, there was a very good chance that the candidate of choice would have withdrawn or even died and thus the latitude in voting.

We need to decide if we have a representative government directed by the will of the people or are our decisions left to the unelected senior executes in the agencies and "deep state" delegates.

[Smokin Joe]

Amusing..... the problem is that every piece that I have read on what the constitution says/means always argues the definition of "is" rather than consider that in the 1790's, communications between the states and capital took months, not hours.  By the time a delegate left a Midwestern state with the  will and intent of the state citizenry, there was a very good chance that the candidate of choice would have withdrawn or even died and thus the latitude in voting.

We need to decide if we have a representative government directed by the will of the people or are our decisions left to the unelected senior executes in the agencies and "deep state" delegates.

But the obvious solution to the problem of government by bureaucratic fiat is to reduce the number of bureaucrats. Unfortunately, Congress has abdicated much of its responsibility to such bureaucrats who promulgate rules with the full force of Statute, and to judges who overthrow the same routinely as long as that conforms with their individual beliefs, often without regard for the Constitution. It isn't that these diktat cannot be overturned, but that the expense of doing so is often beyond the ability of the individuals affected, and thus such arbitrary and often capricious regulations stand as if they were passed by roll call vote of the respective houses and signed into law by the POTUS.
Even more distressing, is when more than one agency passes rules and they conflict.
The Republic is being strangled by red tape and crushed under paperwork.