Electors

[Volokh, Eugene]

        The "let the electors exercise their discretion" argument -- made in
the context of urging Bush electors to exercise their discretion to vote for
Gore as the popular vote winner, or to compensate for alleged irregularities
in this race or that -- has some appeal; after all, under the Constitution
the electors do have the discretion.  Maybe state laws binding the electors
can bar the exercise of that discretion (or maybe not), but some states do
not so bind their electors.  So maybe the electors should be treated the
same way as legislators or convention members or voters generally are
treated.

        But if that's really so, then why wouldn't it be quite permissible
for electors to be lobbied by, among other things, promises that this
candidate or that will implement particular policies?  After all, candidates
routinely lobby voters this way, potential Speaker candidates lobby
Congressmen this way, and I imagine the Framers probably intended that the
electors, exercising their discretion, be lobbied this way.  Outright
bribery ("vote for me and my supporters will give you $10 million") is
doubtless illegal, as it is in the legislature; I'll even stipulate that
overt promises of high political office are illegal, too.  Still, there are
lots of ways to get the electors' votes other than that.

        For instance, say that Gore had won 271-267 (I want to frame the
issue as a Gore victory because most of the supporters of the "elector
discretion" argument seem to be on the left, and I want the hypo to hit
home), and Bush came to three relatively conservative Democratic electors --
or even two, if he thought he'd win the election in the House -- and said
"If you vote for me, I solemnly promise to push the following legislative
agenda that I know you've personally long backed, but that Gore isn't going
to support"?  Or what if he went to three electors from a small state and
offered tremendous benefits for their state if they defected?  The former
would be considered normal politics if offered to voters by a candidate or
to legislators by a candidate for Speaker; the latter might be considered a
bit pork-barrel, but still more or less politics as usual.  Would we be
happy about this being offered to electors, however, in order to swing a
close Presidential race?

        My sense is that we wouldn't, even if the Framers would have
expected something like this to happen.  The fact is that today electors are
chosen with the assumption that they will vote mechanically, and are thus
not really vetted for their sterling character, wise discretion, or what
have you.  When everyone acts in reliance on this sort of now fairly
traditional assumption, it doesn't quite seem right for the electors to
reject this assumption and start exercising discretion *for which they were
not chosen*.  It may be constitutional -- but it just isn't right, any more
than it would be right for anyone else who is selected for what has in
practice become a ceremonial role to start to exercise discretionary
authority that is available in theory (at least setting aside the gravest of
exigencies).
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