# Judge rules states can force electors to follow state rules **URL:** \ **Category:** Politics & Elections\ **Created:** [December 14, 2016, 2:56pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680 "2016-12-14T14:56:45Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 18, 2016, 5:11pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/21 "2016-12-18T17:11:26Z")
> [@Saint\_Cad](#): > > Maybe this is the year that we get the question answered once and for all if “faithless elector” laws are Constitutional. Why do you suspect that will be true? If you are really holding out hope that more than one or two faithless electors will happen, I believe you are being overly hopeful/fearful (depending on how you view it). ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 18, 2016, 5:30pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/22 "2016-12-18T17:30:42Z")
> [@DSYoungEsq](#): > > Why do you suspect that will be true? If you are really holding out hope that more than one or two faithless electors will happen, I believe you are being overly hopeful/fearful (depending on how you view it). Because this may be the first time a faithless elector is actually replaced by the state thus the issue may go to court or Congress could decide to disallow the slate of electors since replacing the faithless elector means the slate was not “regularly given”. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 18, 2016, 5:37pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/23 "2016-12-18T17:37:44Z")
> [@DSYoungEsq](#): > > Why is it a “terrible precedent to set”? > > Colorado has made a very strong public policy determination that the will of the electorate is paramount when it comes to awarding its electoral votes. Which doesn’t mean anything if it is unconstitutional to force an Elector to vote a certain way. > [@DSYoungEsq](#): > > Taking the stance that the Legislature intended with §1 to include in “refusal to act” a refusal to follow §5 gives §5 actual teeth. Otherwise, there’s no enforcement mechanism for §5. What is the state supposed to do, slap the faithless elector on the wrist and say, “Go to the time out corner, no milk and cookies for you!”? The question simply put is, can §1 be read to mean “refusal to act [lawfully]”? That’s not a hard argument to make at all. If that is the case then the law is horribly written. Whose job is it to remove an elector for violating section 5? The SoS? The fellow electors (remember they pick the replacement)? At the very least you are arguing that “failure to act” is ambiguous enough to include voting in violation of section 5 but isn’t a law invalid if it is that ambiguous? As for the second part, there are other states that have a slap on the wrist i.e. a civil fine but still allow the “illegal” vote to count. And there are laws on the books where an act is illegal but there is no enforcement (e.g. the flag codes) ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [December 19, 2016, 12:11pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/24 "2016-12-19T12:11:23Z")
> [@bump](#): > > I can’t imagine that there would be any ability to replace a faithless elector if only because effectively rescinding and replacing an elector’s vote because it’s not what the powers-that-be desire is a horrendous idea and terrible precedent to set. Why is it horrendous and a terrible precedent to set? Treating the electoral college as a democratic body with actual rights and privileges is far more dangerous, IMO. Those rights have long since expired, and any attempt to exercise them needs to be crushed. The actual arguments used to overrule them if they step outside the lines is not terribly important so long as the decision is correct. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 19, 2016, 2:44pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/25 "2016-12-19T14:44:01Z")
> [@Saint\_Cad](#): > > Which doesn’t mean anything if it is unconstitutional to force an Elector to vote a certain way. Establish that it’s unconstitutional. I’ve yet to see you or anyone else making that argument, backed by specific text in the constitution. As I asked, how is it a “terrible precedent?” Make the case. Be specific. > [@](#): > > If that is the case then the law is horribly written. Whose job is it to remove an elector for violating section 5? The SoS? The fellow electors (remember they pick the replacement)? At the very least you are arguing that “failure to act” is ambiguous enough to include voting in violation of section 5 but isn’t a law invalid if it is that ambiguous? No, a law isn’t invalid just for being ambiguous. What gave you that idea? Ambiguity is the special delight of lawyers. 🆒 But more to the point, yes, the Secretary of State would appear to have that function, or at least an argument can be (and has been) made to that effect, since the SoS oversees the process in Colorado. And it’s not “failure to act”, it’s “refusal to act”, which is a significant difference. > [@](#): > > As for the second part, there are other states that have a slap on the wrist i.e. a civil fine but still allow the “illegal” vote to count. And there are laws on the books where an act is illegal but there is no enforcement (e.g. the flag codes) Yes, some states have putative post-vote punishments. But Colorado does not. Why? Because they have a better mechanism: invalidating the effort to vote contrary to the law. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [December 19, 2016, 3:19pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/26 "2016-12-19T15:19:58Z")
“Each candidate running for President in your state has his or her own group of electors.” – [“What is the Electoral College?”](https://www.archives.gov/federal-register/electoral-college/about.html) – US Archives – n/d Each State may differ in this aspect, but generally speaking, these Electoral Voters are picked by the candidate … so in effect, these 9 folks in “Colorado” were hand-picked by Hillary as being her best friends and political allies … there’s another 9 folks who were hand-picked by The Donald, who will _not_ be meeting in “Denver” to cast their Electoral Votes … See where I’m going with this? There are 306 hardcore rabid “party-first” complete loyalists, dedicated heart-and-soul whose only goal in life is to put The Donald into the White House … just seems a stretch to think 37 will vote for someone else … ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [December 19, 2016, 3:54pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/27 "2016-12-19T15:54:36Z")
> [@DSYoungEsq](#): > > Taking the stance that the Legislature intended with §1 to include in “refusal to act” a refusal to follow §5 gives §5 actual teeth. Otherwise, there’s no enforcement mechanism for §5. What is the state supposed to do, slap the faithless elector on the wrist and say, “Go to the time out corner, no milk and cookies for you!”? The question simply put is, can §1 be read to mean “refusal to act [lawfully]”? That’s not a hard argument to make at all. As we combinatorists frequently have cause to say, “order matters.” And an order of events is clearly given by the statute: > [@](#): > > If any vacancy occurs in the office of a presidential elector because of death, refusal to act, absence, or other cause, the presidential electors present shall immediately proceed to fill the vacancy in the electoral college. When all vacancies have been filled, the presidential electors shall proceed to perform the duties required of them by the constitution and laws of the United States. Only _after_ the vacancies have been identified and filled does the voting begin. I don’t see anything there that empowers anyone to relitigate the vacancy issue once the electors have moved on to the business of voting. So yeah, there’s no enforcement mechanism for §5. Sometimes the law is badly written. My take on the underlying Constitutional issue, which as I see it, is what should control here, is this: the Founders clearly intended that the Electors be a deliberative body. (_The Federalist_ #68 and all that.) The states have total freedom to choose the Electors any which way. (This fact still astounds me when I think about it, but there it is.) But once they’ve chosen them, they can’t re-choose them based on the outcome of the Electors’ deliberations, because that would act as a veto over their performing their duty under the Constitution. And nobody gets to veto a part of the Constitution. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [December 19, 2016, 5:32pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/28 "2016-12-19T17:32:33Z")
> [@Lord\_Feldon](#): > > Why is it horrendous and a terrible precedent to set? Treating the electoral college as a democratic body with actual rights and privileges is far more dangerous, IMO. Those rights have long since expired, and any attempt to exercise them needs to be crushed. The actual arguments used to overrule them if they step outside the lines is not terribly important so long as the decision is correct. Here’s the thing though; in states where the rule of law is paramount, you HAVE to follow the law to the letter. Which means that the Electoral College does still retain some ability to be its own democratic body with its own rights and privileges. As long as it still exists, it pretty much HAS to conform to the traditional democratic principles of each person casting an irrevocable vote, etc… I don’t have any issue with faithless electors being punished for said faithlessness, and I wouldn’t have a problem with states pre-emptively replacing electors who advertise their intent to be faithless (see Suprim in Texas), but I do have serious problems with tampering with the vote once it’s been made, up to and including replacing faithless electors and re-voting and other banana republic bullshit. ---
**Author:** ![Drunky\_Smurf](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drunky_smurf/32/449_2.png) [@Drunky\_Smurf](https://boards.straightdope.com/u/Drunky_Smurf)\ **Post date:** [December 19, 2016, 5:51pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/29 "2016-12-19T17:51:00Z")
> [@foolsguinea](#): > > Trump is generally believed to have mob ties. I have heard this as well. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 19, 2016, 6:13pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/30 "2016-12-19T18:13:32Z")
> [@DSYoungEsq](#): > > Establish that it’s unconstitutional. I’ve yet to see you or anyone else making that argument, backed by specific text in the constitution. As I asked, how is it a “terrible precedent?” Make the case. Be specific. The Constitution empowers the states to _select_ Electors. There is nothing in the Constitution giving the state the power to tell the voter how to vote. I would also argue that according to the laws of the state, we have selected our electors. 3 USC 1 Sect. 4 gives states the power to fill vacancies but no power to remove an Elector. But let’s look at Section 5 > [@](#): > > § 5. If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. So any change to the appointment of Electors (like removal and replacement) needed to be done by Dec 13th > [@DSYoungEsq](#): > > But more to the point, yes, the Secretary of State would appear to have that function, or at least an argument can be (and has been) made to that effect, since the SoS oversees the process in Colorado. And it’s not “failure to act”, it’s “refusal to act”, which is a significant difference. But is so ambiguous as to be meaningless. “Refusal to act” means failure to do what exactly? Vote? Follow Section 5? Vote the way the Governor commands them to vote? Vote in accordance with the US Constitution (3 USC 1 Sect 8) by voting for two Coloradans? Oh hey that last one forms an interesting hypothetical. Suppose a party nominates two people from the same state (The Pubs almost did this with Bush & Cheney) and they are both Colorado citizens. Would you argue that Section 5 of the state law would require the Electors to make an illegal vote? > [@DSYoungEsq](#): > > Yes, some states have putative post-vote punishments. But Colorado does not. Why? Because they have a better mechanism: invalidating the effort to vote contrary to the law. That’s the issue however. There IS no mechanism for invalidating the effort. There is nothing that says a vote in violation of Section 5 is invalid. There is no mechanism for removing the elector. If there were, wouldn’t the law specifically name who removes the elector, the SoS, the fellow Electors, someone else? If there were there would be something like > [@](#): > > 5(b) Any vote in violation of 5 shall be considered a “refusal to act” and that elector’s position shall be considered vacant under Section 1. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 19, 2016, 6:51pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/31 "2016-12-19T18:51:47Z")
A Judge told the Electors they did not have to take the oath of office [as amended by the SOS.](http://www.thedenverchannel.com/news/local-news/colorado-electors-file-last-minute-motion-not-to-take-amended-oath-of-office-hours-before-vote) Highlights from the article > [@](#): > > The original Colorado oath of office says the person does “solemnly swear by the everliving God, that I will support the Constitution of the United States and the State of Colorado, and faithfully perform the duties of the office of \_\_\_\_\_\_\_\_\_ upon which I am about to enter.” > > The Secretary of State’s Office, as noted in a transcript from last week’s district court proceedings, has added “…of presidential elector that I am about to enter, and that I will vote for the presidential candidate and vice presidential candidate who received the highest number of votes at the preceding general election in this state,” to the elector’s oath. > [@](#): > > Monday’s filing argues that Secretary of State Wayne Williams’ changes to the oath of office specifically for this instance “is both improper and unnecessary,” citing a statement Williams made over the weekend to POLITICO in which he suggested that the language was added in order to force the electors to perjure themselves by taking the oath but not voting for Clinton. > [@](#): > > The attorney who filed Monday’s motion, Jesse Witt, argued that the 10th Circuit’s ruling should be interpreted as meaning that the electors can be replaced before they take the oath of office, but not afterward. ETA: I hope these two vote for someone else and force the issue. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 19, 2016, 8:23pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/32 "2016-12-19T20:23:51Z")
And we may be set for a Constitutional Crisis > [@](#): > > All nine of the state’s Electoral College votes were eventually cast for Democratic nominee Hillary Clinton and her running mate, Tim Kaine, but not until a last-minute filing in federal court, a conference with a judge _and an elector being replaced for not voting in accordance with state law_. The 10th Circuit hinted in their earlier ruling that such a replacement may be unconstitutional. Questions are: 1. How will SCOTUS rule (eventually) 2. Will Congress disallow the vote as “not regularly given”. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 19, 2016, 9:43pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/33 "2016-12-19T21:43:54Z")
A “Constitutional Crisis”? You are joking, right? First, let me make clear that my personal opinion about the relevant law is not what I’ve been discussing. Your expressed opinions are probably pretty close to mine. However, the point I’ve been trying to make is that this isn’t an “open-and-shut” situation, where no one could possibly have a decent legal argument in favor of removing the elector. I’ve made a decent legal argument. Indeed, the one I made (which I came up with without reading what the Colorado Secretary of State was saying about the issue) is, indeed, essentially the one being adopted. Let us put one thing to rest right now: The 10th Circuit did not really hint anything about the constitutionality of the concept of replacing an elector as the Secretary of State threatened to do. Here is the sentence in the opinion denying the requested injunction: “While we question whether that subsection provides him any such authority after voting has commenced, that precise question is not before us.” In other words, it’s not been briefed, argued, properly raised and considered, etc. by the court. The judges denying the injunction aren’t certain the SoS has the authority; they would need to be briefed before they could truly answer the question. And, of course, the likelihood that the courts will get involved is actually low. This is probably a case where they will defer to Congress on the issue. Congress, of course, will not do anything other than accept the return from the state of Colorado, should a claim actually be raised from the requisite number of members (one each from House and Senate, if my memory serves me right). But hang onto your hope for drama, if you like. The underlying issue of legislative construction is certainly potentially interesting. As for your “constitutional” argument, I’m not comprehending it. What particular part of the United States Constitution do you argue is being violated by the removal of the “faithless” elector? The fact that the Constitution doesn’t specify the right to do so doesn’t make doing so unconstitutional; you do understand that, right? Indeed, if you read the 10th Circuit opinion you are referencing, you’ll find that the 10th Circuit pretty clearly dismissed all the other “constitutional” arguments the two petitioner-electors raised. Swatted them down fairly quickly by noting that the Constitution gives Colorado the right to choose how electors are selected, and that that authority has previously been ruled to be plenary. You still need a constitutional reason it **can’t** be done. In passing, I’ll point out that your reference to 3 U.S.C. §5 is incorrect. The “safe harbor” provision simply means that, had they removed the elector prior to Dec. 13, Congress cannot challenge that. The subsequent removal does at least allow Congress to challenge the validity of the vote tally reported. But that doesn’t mean it cannot be done. Your efforts at statutory construction are weak, here. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 19, 2016, 10:21pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/34 "2016-12-19T22:21:41Z")
> [@DSYoungEsq](#): > > Let us put one thing to rest right now: The 10th Circuit did not really hint anything about the constitutionality of the concept of replacing an elector as the Secretary of State threatened to do. Here is the sentence in the opinion denying the requested injunction: “While we question whether that subsection provides him any such authority after voting has commenced, that precise question is not before us.” In other words, it’s not been briefed, argued, properly raised and considered, etc. by the court. The judges denying the injunction aren’t certain the SoS has the authority; they would need to be briefed before they could truly answer the question. Apparently they did [in the footnote.](http://www.cnn.com/2016/12/18/politics/electoral-college-colorado-democratic-electors/index.html) > [@](#): > > In a footnote the court did leave open the possibility that if a secretary of state tries to remove an elector he or she could challenge that action under the federal Constitution. > A spokeswoman for the Colorado Secretary of State’s office, however, notes the question of whether an elector can be removed was not part of the specific case heard by the federal court so it has been advised to go by the state law which says an elector who refuses to vote for the popular vote winner may be removed. > [@DSYoungEsq](#): > > As for your “constitutional” argument, I’m not comprehending it. What particular part of the United States Constitution do you argue is being violated by the removal of the “faithless” elector? The fact that the Constitution doesn’t specify the right to do so doesn’t make doing so unconstitutional; you do understand that, right? The Constitutional question is: Is the Electoral College an independent deliberative body or not? There is also another question at work. My state selected a slate of electors in accordance to the law. Does the state have a right to remove a properly elected Elector because they don’t vote in the way the State wants? > [@DSYoungEsq](#): > > Indeed, if you read the 10th Circuit opinion you are referencing, you’ll find that the 10th Circuit pretty clearly dismissed all the other “constitutional” arguments the two petitioner-electors raised. Swatted them down fairly quickly by noting that the Constitution gives Colorado the right to choose how electors are selected, and that that authority has previously been ruled to be plenary. You still need a constitutional reason it **can’t** be done. The right to select a group does not give the right to tell them how to vote. For me the bottom line is this. There is absolutely no justification in the Constitution allowing a State to control how an Elector votes. You contend that there is nothing preventing it. So which should win out? IMO the voters selected a group of voters and I have trouble with a State being able to tell ANY group of voters “Vote this way or you’ll be punished.” Time will tell based on what the courts do and Congress on 6 Jan if this controversy will lead to a clarification (or change) of the Electoral College’s function. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 19, 2016, 11:40pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/35 "2016-12-19T23:40:31Z")
You really should read the opinion if you’re going to cite it. 😉 The footnote in question said, “And we deem such an attempt by the State unlikely in light of the text of the Twelfth Amendment.” This is an odd statement, since the Twelfth Amendment doesn’t seem to have any language pertinent to that issue in it at all. > [@Twelfth Amendment](#): > > 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 of 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; The best I can guess is that the question is whether being able to see the ballot and intervene means that they have “voted by ballot” (there may be some decisional law on this sort of thing the back recesses of my brain is telling me). But there’s nothing in the 12th that specifically prohibits the practice. I’ve been pushing you to make a constitutional argument because it’s a common problem with liberals in this country (less often with conservatives, since they usually just point to the words and say, “what that says”) to assert that the Constitution bars all sorts of bad behavior. Granting, for the sake of argument, that removing an elector who is faithless is a “bad” idea (subversive to democratic ideals), that doesn’t make it unconstitutional. You have to actually articulate constitutional law to support your idea. Unconstitutionality isn’t something that happens because something offends my sensibilities, or the sensibilities of **Saint Cad**. You assert that the Constitutional question is: “Is the Electoral College an independent deliberative body or not?” In what way is this a _constitutional_ question? That is, suppose, as happened, the SoS of Colorado, interpreting his state statute (§1 of the relevant statute as it happens) to give him the authority, removes an elector who attempts to cast a ballot that is contrary to the requirements of state law. How specifically does this violate the Constitution? Is there some specific language in the Constitution that it violates? How does it violate that language? What prior decisional law, if any, are you relying upon to support your assertion? Is there decisional law you’re going to have to distinguish, because it appears to counter your argument? Just saying, “Your Honor, what Colorado did subverts the purpose of the Electoral College” isn’t going to get you anywhere (not the least for the reason that the “Electoral College” is not even mentioned in the document). The entirety of the Constitution’s reference to this body is found in Article II, as amended by the provisions of Amendment XII. I’ve referenced the relevant language of the amendment; nothing there says that they have to be able to “deliberate.” As for Article II: > [@Article II](#): > > 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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. … The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. There you have it. One final important piece of information is relevant: The Supreme Court in McPherson v. Blacker, 146 US 1 (1892) established that the power of the state with regard to choosing electors is plenary, that is, it is not limited in scope. That case, by the way, is the reason Nebraska and Maine are allowed to use districts to determine electors; in McPherson, Michigan was doing exactly that, which is what was objected to. But if the method of choosing an elector is plenary, then certainly it can be considered to include the power to ensure that the elector, in the process of attempting to vote, casts a valid ballot under state law. Now, once again, I caution that my arguments are not meant to be dispositive. I’m not addressing the relative merits of them. But so far, your argument devolves to: “I don’t think this lets the Electoral College do what they framers intended, thus it’s unconstitutional.” My only intent up to this point is to establish that, as a constitutional argument goes, that’s a non-starter. Now, as I hinted above, you might get somewhere if you looked into decisional law on the meaning of casting a ballot. You might also want to make some assertions with regard to rules of construction. My personal opinion, previously expressed, is that this is tempest in teapot time, and nothing fruitful will come of it. Sadly, many interesting legal questions die the death of irrelevancy. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 8, 2017, 8:35pm UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/36 "2017-08-08T20:35:54Z")
Reading the denial of the appeal [here](http://www.politico.com/f/?id=00000159-0e02-d3a5-ab7d-ceb224780000), it seems like Baca had some good legal arguments but did not use them. Bad lawyering? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 9, 2017, 2:52am UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/37 "2017-08-09T02:52:29Z")
If a state can remove a duly elected elector (yes) for not voting “properly” why could it not do the same for a member of Congress? Say, have a law that state that if a Congressman ever votes contrary to his campaign promises his seat is vacant. Nobody would seriously believe such a law would be constitutional. The Supreme Court (Term Limits v. Thornton?) held that the states may not impose any greater requirements on members of Congress than those specified in the Constitution. I know that Congress and the Electoral College are not perfectly analogous, and states would likely be able to impose additional requirements on electors. However, it is unseemly and an affront to commonly understood ideals of representative democracy, that any elected member of anything could be removed ex post for failing to act how the government directs him to act. Such a thing is not representation, but a farcical rubber stamp. Now, it could be argued that a rubber stamp is exactly what we want, and that tradition and custom have stripped the electors of whatever powers the framers intended them to have and that the voter of the state should have their will enacted. Such a change, I believe, would require a constitutional amendment. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 9, 2017, 6:11am UTC](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680/38 "2017-08-09T06:11:37Z")
> [@UltraVires](#): > > If a state can remove a duly elected elector (yes) for not voting “properly” why could it not do the same for a member of Congress? Read the opinion I linked to. The Court said that they probably wouldn’t do that … But Williams (the Sos) did anyways. [Previous page](https://boards.straightdope.com/t/judge-rules-states-can-force-electors-to-follow-state-rules/774680.md?page=1)