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BACKGROUND

Despite the basically accurate title of this question, the full question is a bit complicated so I am going to start with some background and then ask an expanded version of the above title. I am curious on how/if this would work in the context of Constitutional Law.

In a recent interview, Montana State Sen. Jeff Essmann, chairman of the Republican Party of Montana stated being a presidential elector

“is strictly a ceremonial function, and I hope people remember that.”

My understanding of Federalist Paper #68 is that electors are supposed to perform their duties in a manner which is decidedly not a ceremonial function. Note the following excerpt with certain keywords I have highlighted in bold...

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

I believe (though I may be in error) the courts have in the past looked to the Federalist Papers, along with the minutes and other writings from the Constitutional Convention of 1787 to determine the Framer's intent.

(sub question) Is anyone here familiar with details of the Constitutional Convention of 1787 enough to know if there is any corroboration with the purpose of the electors as described in F.P. #68 ?

THE FULL QUESTION

So, here is the full question. If the founding fathers indeed wanted us to have an electoral college that was an active, reasoning, and deliberative body, could it be submitted to a court that any electors who affirm they believe that they were appointed to perform "strictly a ceremonial function" and that they intend to do just that are not qualified for and/or not fulfilling the obligations of the office to which they were elected?

PS: I believe this is called "non-feasance" in legal terms.

  • Errrh, the only way I can imagine anyone answering this question is to write up the argument that they would present to SCOTUS in some case... about what? Courts don't just entertain arguments for giggles. – user6726 Nov 24 '16 at 5:37
  • How you differentiate a faithful elector who is so because he believes he is doing the right choice (but could become faithless in other case) from a faithful elector who is so because he believes his paper is ceremonial? In both cases they do what they believe they should be doing.. – SJuan76 Nov 24 '16 at 9:51
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    @SJuan76 Doing what you believe you should be doing is not the same as doing what the law requires. History is filled with decades of cases where self-righteous law enforcement officers went on vendettas against men they were sure were guilty, and in the process violated their oaths to uphold the law. – O.M.Y. Nov 24 '16 at 17:36
  • @user6726 A good question. The most probable case would be one where someone (with standing of course) would file a case alleging lack of proper representation by virtue of an unqualified elector. – O.M.Y. Nov 24 '16 at 17:42
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    Imagine. Elector X says: "I vote for Y because my paper is ceremonial only." You (& SCOTUS) "Elector X, your vote is not ceremonial." Elector X: "Ok, then I vote for Y because I want to vote for Y". Or Elector X is disqualified, pledged Elector Z is assigned and says: "I vote for Y" without any other comments... The outcome is the same for all the situation, and judging the intent or the beliefs of people is difficult. – SJuan76 Nov 24 '16 at 17:48
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The Constitution requires:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ...

and by the Twelfth Amendment:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

Senator Essmann is entitled to his opinion, however, on the face of it, this is not a ceremonial duty.

In Ray v Blair it was decided unequivocally that the Twelfth Amendment doesn't prevent parties from requiring elector candidates to take a pledge of nominee support. Further, the requirement of a pledge does not deny equal protection under the Fourteenth Amendment.

However, it did not address the requirement that electors must vote for their pledged candidate. Twenty-nine states plus the District of Columbia have laws to penalize faithless electors, although these have never been enforced. In lieu of penalizing a faithless elector, some states, such as Michigan and Minnesota, specify the faithless elector's vote is void, though no state has yet had cause to enforce such a provision. It is an open question if these laws are constitutional.

In principle, it is fundamental that the exercise of a persons vote, whether as a member of the Electoral College or generally, is a matter for their own conscience (which may be informed by the knowledge that they were apointed based on a pledge). The reason why a person votes one way or another is not a matter for a court to inquire into unless it was a question of an unlawful external factor being applied such as coercion or bribery.

If an elector votes a particular way because they believed they had no choice as their role is "purely cerimonial", then irrespective of if this is correct or not, they are entitled to believe this and cast their vote in light of that belief: that's what democracy means.

  • In this case Essmann's opinion becomes policy and instruction to the GOP electors from Montana under his direction. In such a position of influence I am not so sure the courts would agree that "he has the right to his opinion" or at least he may have no right to voice it in any official capacity since as such it coerces those entrusted with the duties of presidential elector. – O.M.Y. Nov 24 '16 at 17:49
  • I would also disagree that they have the right to cast their vote in the light of what they believe. Electors are temporary elected government officials with rights and responsibilities. Just as a judge cannot pass judgement based on what he believes but rather must follow the law, so too must an elector set aside their personal biases and use their reasoning skills to "vote for some fit person as President". This is not just a right, it is a sacred duty as Hamilton describes it. – O.M.Y. Nov 24 '16 at 18:12
  • @O.M.Y. A senator stating something is not coercion as he has no power over the electors - it may be influential but influencing people is part and parcel of democracy: he is entitled to influence voters in the Electoral College just as he is entitled to influence voters in the general election. Electors have a constitutional duty to perform - they have to vote. The constitution is silent on how they determine their vote so they can do it by throwing darts at a dart board if they like. In this way they are similar to jurors. – Dale M Nov 24 '16 at 23:26
  • @Dale_M As a senator he has no influence, but as State Chair his duties include selecting the nominees for the GOP slate of electors and supervising the electors at the state capitol meeting. In those capacities he does have influence. If the intent of the Framer's was that the purpose of the electors is to make a free and informed decision then telling them that they have only a ceremonial duty is like a judge to a giving flawed instructions to a jury. Events inside the jury room are free from direct outside influence, but a jury decision based on bad instructions results in a mistrial. – O.M.Y. Nov 25 '16 at 1:03

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