This is the problem of the so-called “faithless Elector,” and, as everyone is aware, it is receiving a great deal more attention these days than possibly at any time in the history of our republic. Law professor Lawrence Lessig has famously called on electors to exercise their judgment and to cast their ballots in accordance with the popular-vote majority won by Hillary Clinton.
Putting aside — just for a moment — the question of whether this is a good idea, it does seem to me that the constitutionality of such an action can’t be seriously questioned — at least, not if you’re an originalist. In the original constitutional scheme, electors really were supposed to choose the president, exercising their discretion and judgment to find the best person for the job. Being chosen as an elector was a high public office (though it had only a single function, and the appointment terminated as soon as that one function had been performed), and the vote for electors was one to be taken quite seriously, because you were picking the people who would choose the next president.
If you question any of this, you should read Robert Delahunty’s terrific explication of the history of the electoral “college” (a phrase that, incidentally, was not used in the Constitution, nor in the ratification debates). Delahunty shows — conclusively and quite magisterially, in my view — that the original intent of the Constitution, supported by its text and overall structure, not only permits but also “requires” presidential electors to exercise “discretion and independent judgment” in casting their ballots.
Should the electors actually take this course? And if so, for whom should they vote?
I agree with co-blogger Orin Kerr’s critique of Lessig’s view that the electors should “uphold the fundamental principle of one person, one vote” by voting for Clinton because she won a substantial popular-vote plurality. As Orin puts it, there’s a “considerable clash” between the originalist idea that electors should exercise their independent judgment — that they should be, in Lessig’s nice phrase, “citizens exercising judgment, not cogs turning a wheel” — and Lessig’s companion idea of “electors following the nationwide [plurality] vote.”
On the other hand, had I been chosen as an elector and were exercising my own independent judgment and discretion in the matter, I certainly would think it eminently reasonable to take into account the fact that a substantial plurality of my fellow citizens appear to view Clinton as qualified to be president. Added to the fact that a number of other candidates are manifestly unqualified, and are, in my judgment, a threat to our constitutional democracy, I’d certainly give faithlessness a long, hard look.
From the comments:
Why bother learning anything about the Constitution and our form of government if you can bury your head in the sand and pretend it's all partisan nonsense?