constitutional-law us-constitution elections
Can presidential electors be challenged for performing &quot;strictly a ceremonial function&quot;?
<p><strong>BACKGROUND</strong> </p>

<p>Despite the basically accurate title of this question, the full question is a bit complicated so I am going to start with some background and then ask an expanded version of the above title. I am curious on how/if this would work in the context of Constitutional Law. </p>

<p>In a <a href="http://lastbestnews.com/site/2016/11/prairie-lights-in-the-age-of-trump-a-new-kind-of-elector/" rel="nofollow noreferrer">recent interview</a>, Montana State Sen. Jeff Essmann, <a href="https://ballotpedia.org/Jeff_Essmann" rel="nofollow noreferrer">chairman of the Republican Party of Montana</a> stated being a presidential elector </p>

<blockquote>
  <p>“is strictly a ceremonial function, and I hope people remember that.”</p>
</blockquote>

<p>My understanding of <a href="http://avalon.law.yale.edu/18th_century/fed68.asp" rel="nofollow noreferrer">Federalist Paper #68</a> is that electors are supposed to perform their duties in a manner which is decidedly not a ceremonial function. Note the following excerpt with certain keywords I have highlighted in <strong>bold</strong>...</p>

<blockquote>
  <p>It was equally desirable, that the immediate election should be made by men most capable of <strong>analyzing</strong> the qualities adapted to the station, and <strong>acting</strong> under circumstances favorable to <strong>deliberation</strong>, and to a judicious combination of all the reasons and inducements which were proper to govern their <strong>choice</strong>. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the <strong>information</strong> and <strong>discernment</strong> requisite to such complicated <strong>investigations</strong>. </p>
</blockquote>

<p>I believe (though I may be in error) the courts have in the past looked to the Federalist Papers, along with the minutes and other writings from the Constitutional Convention of 1787 to determine the Framer's <em>intent</em>. </p>

<p>(sub question) Is anyone here familiar with details of the Constitutional Convention of 1787 enough to know if there is any corroboration with the purpose of the electors as described in F.P. #68 ?   </p>

<p><strong>THE FULL QUESTION</strong> </p>

<p>So, here is the full question. If the founding fathers indeed wanted us to have an electoral college that was an active, reasoning, and deliberative body, could it be submitted to a court that any electors who affirm they believe that they were appointed to perform "strictly a ceremonial function" and that they intend to do just that are not qualified for and/or not fulfilling the obligations of the office to which they were elected? </p>

<p>PS: I believe this is called "non-feasance" in legal terms.</p>

<p>The Constitution requires:</p>

<blockquote>
  <p>Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ...</p>
</blockquote>

<p>and by the Twelfth Amendment:</p>

<blockquote>
  <p>The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.</p>
</blockquote>

<p>Senator Essmann is entitled to his opinion, however, on the face of it, this is <strong>not</strong> a ceremonial duty.</p>

<p>In <a href="https://en.wikipedia.org/wiki/Ray_v._Blair" rel="nofollow noreferrer">Ray v Blair</a> it was decided unequivocally that the Twelfth Amendment doesn't prevent parties from requiring elector candidates to take a pledge of nominee support. Further, the requirement of a pledge does not deny equal protection under the Fourteenth Amendment. </p>

<p>However, it did not address the requirement that electors must vote for their pledged candidate. Twenty-nine states plus the District of Columbia have laws to penalize faithless electors, although these have never been enforced. In lieu of penalizing a faithless elector, some states, such as Michigan and Minnesota, specify the faithless elector's vote is void, though no state has yet had cause to enforce such a provision. It is an open question if these laws are constitutional.</p>

<p>In principle, it is fundamental that the exercise of a persons vote, whether as a member of the Electoral College or generally, is a matter for their own conscience (which may be informed by the knowledge that they were apointed based on a pledge). The reason why a person votes one way or another is not a matter for a court to inquire into <em>unless</em> it was a question of an unlawful external factor being applied such as coercion or bribery.</p>

<p>If an elector votes a particular way because they believed they had no choice as their role is "purely cerimonial", then irrespective of if this is correct or not, they are entitled to believe this and cast their vote in light of that belief: that's what democracy means.</p>
