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:
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