20 Pages Posted: 21 Oct 2004
In a presidential election year, it is always time to be thinking about the Electoral College again. One of the many defects of the Electoral College, and one that has received substantial scholarly attention, is the problem of the faithless Elector - the Elector who does not vote in accordance with the popular vote, but instead exercises her own discretion to vote for the candidate of her choice. This Essay, written during the last presidential election cycle, reveals the problem of the very faithless elector - the Elector who does not vote in accordance with the Constitution. Careful attention to the Constitution's Oath or Affirmation Clause reveals that Electors are not bound to support the Constitution. Under our Constitution, the faithless Elector may be very faithless! This is a first-class constitutional stupidity because Electors are responsible for electing an entire branch of federal government. The Essay also discusses the position of Electors in our constitutional order - whether they are properly officers or agents of the United States, officers or agents of the several States, or something else. Finally, the Essay proposes a solution to the problem of the very faithless Elector that does not require a constitutional amendment.
Suggested Citation: Suggested Citation
Kesavan, Vasan, The Very Faithless Elector?. West Virginia Law Review, Vol. 104, No. 123. Available at SSRN: https://ssrn.com/abstract=607121