Four years ago, I confidently informed my readers, in several places, that electors in the electoral college had a solemn responsibility to vote for the American they consider best qualified, not the candidate their party has “pledged” them to. So-called “faithless electors,” I told you, were not faithless at all, but were fulfilling their duty to the Constitution.
I explained why this was the system the Founding Fathers had intended, I cited some solid scholarship in support of this position, and I was greatly heartened when, last year, the 10th Circuit Court of Appeals upheld my position in a landmark ruling.
However, this morning, the U.S. Supreme Court unanimously rejected my position. This is deeply disappointing, because restoring the proper function of the electoral college was one of the diminishing number of ways we might have been able to fix our broken government and electoral system. Of course, the Supreme Court often gets it wrong. Chief Justice Roberts, in particular, is an unprincipled dumpster fire. (Much as it pains me to admit.) But this decision was unanimous… and the devoted textualist Gorsuch, fast becoming my favorite justice, signed on to both opinions giving separate reasons why I was wrong. Maddening though it is, I find it (as usual) difficult to argue with Justice Thomas’s concurrence.
The Supreme Court did not deny that the Founding Fathers wanted a system where electors had freedom and discretion. They did not reject any of the reasons why that system was a good idea. I stand by those. They affirmed that states could give electors discretion if they chose, and I maintain that they should. But the system the Founders wanted is not necessarily the one they legislated, and the Supreme Court determined that the original public meaning of the Constitution does not guarantee discretion to the electors.
I told you otherwise way back when, and I must now retract those statements.