Faithless Electors and Constitutional Fidelity

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Did the Supreme Court get the faithless-electors case wrong? “The originalist evidence that the states cannot influence or control the electors is overwhelming,” writes Mike Rappaport.

Update: Reader PJM writes:

If Michael Rappaport thinks the originalist evidence for his view is overwhelming, he would have done well to include some of that overwhelming evidence in his piece.  The evidence he provides is extremely weak and little more than conclusory statements.

He rebuts Kagan’s Soviet election analogy, which I agree is weak, but he completely ignores her first example, which deals with voting by proxy.  That’s a far better comparison, directly analogous to the voting of bound electors.  Proxies and other agents without discretion certainly “vote” and use “ballots.”

That Hamilton envisioned electors with independence also doesn’t add much.  No one argues that independent electors aren’t an option, and that may even have been viewed as the likely way it would work.  That’s far from a compelling case that the constitution commands it.

Finally, he doesn’t even begin to address Thomas’s 10th amendment argument, just (again in conclusory fashion) calling it misapplied in this case.

Do you think he made a strong case, or were you just highlighting a different take?

The truth is that I was focused on several other Supreme Court cases at the time this decision came out, and so haven’t read the opinions. As a matter of first impression I thought Rappaport made a strong case, but so does PJM.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.






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