Faithless or Faithful Electors? An Analogy to Disobedient but Conscientious Jurors

Abstract

A majority of states require delegates to the Electoral College to pledge that they will vote in accordance with the popular vote in their state. In previous decisions, the Supreme Court has upheld the legality of extracting such a pledge but left open whether it is legally enforceable against a so-called “faithless” elector. The pledge would not be enforceable if the Constitution grants electors the authority to cast an independent vote for President of Vice President. Two pending cases call upon the Court to resolve the issue. The notion that electors, or any government actors, could violate their oaths of office with impunity seems a violation of basic principles of democratic accountability. But this Article draws attention to one place where we do practice and accept the legitimacy of “bound but not punishable” actors. In jury trials, we require jurors to swear an oath that they will follow the law, whether they agree with it or not. But we do not, and cannot, punish jurors who violate their oaths to discharge their civic duty as they understand it. We do not even call them “faithless.” We call them conscientious. This Article explores whether the analogy between jurors and electors hold. I conclude that there is one circumstance where it takes a faithless elector to keep faith with popular democracy. This is when the loser of the national vote is about to become president through the Electoral College.

Keywords: Electoral College, Elections, Juries, Constitutional Law