The Electoral College method of electing presidents is an archaic relic of buggy-whip times and needs to be put out of its misery. We are now perfectly capable of counting every individual vote and adding them up, even though certain locales still chafe mightily at being required to do so.
Until it dies, we’re going to get these “What happens if faithless electors don’t vote for the candidate they were elected to vote for?” stories every election cycle. This time around, it comes with a petition to the Supreme Court to settle the question of whether electors can be required by their states to vote as they pledged to. Law professor Lawrence Lessig is the filer, representing three electors fined $1,000 each last time around for abandoning Hillary Clinton in favor of, sigh, Colin Powell.
Lessig wants the question to be settled quickly, before the upcoming election threatens to make the case politically toxic for the Court. That is probably wishful thinking. There is no way to separate the question from the current context of Donald J. Trump lashing about in such an unstable fashion as to have much of the public questioning his daily sanity. If Trump manages to not be impeached and manages to win re-election but goes irretrievably bonkers in the short window between Election Day and when the electors actually meet—perhaps, say, announcing that he has sold Alaska to Putin or that God appeared to him in a dream to tell him that he was now King Eternal of the American Realms—are Trump electors truly mandated to stand by the crackpot?
The Constitution seems to be clear: There is no such mandate. The premise was that the common rabble would choose electors, theorized to be intelligent and upstanding people because the founders were honestly a bit gullible about these things, and the electors would make the actual decision based on their intelligence and upstandingness. Some even theorized that this would save the nation, in the unlikely event that the unwashed masses chose some gigantic boorish moron to govern, upon which the intelligent and upstanding electors would squash that shudderingly stupid idea and negotiate an alternate, non-idiotic choice. In theory.
Given that all of that turned out to be bunk, we can safely dispose of the scheme entirely.
In the meantime, the Supreme Court might seem likely to rule that electors are free to vote their conscience, since that is the originalist interpretation. But Justice I Like Beer and associates might also decide that now would be a good time to fire a just-to-be-sure warning shot at any future Republican electors who might upset Dear Leader in 2020 with the sudden development of a conscience. You cannot honestly claim court conservatives will not choose whatever path best suits the day’s dominant partisan need.
The most likely outcome, however, is nothing. The Court may decide the question is not even worth commenting on. If they do, the odds of a decision making any difference in any future election remain remote. If electors are indeed mandated to pay fines for faithlessness, allies will step forward to pay them. This is mostly a reminder of how ramshackle our current scheme is, even if we do like to slap a new coat of paint on it each time around.