Several states have laws that purport to restrict or punish faithless electors for their electoral votes. See Wikipedia's Faithless elector: Legal position. Michigan and Minnesota even claim the authority to replace the votes of faithless electors after the fact:

If an elector fails to cast a ballot for the presidential or vice presidential candidate of the party under whose name the elector was chosen, the elector's vote or abstention is invalidated and an alternate presidential elector, chosen by lot from among the alternates, shall cast a ballot in the name of the elector for the presidential and vice presidential candidate of the party under whose name the elector was chosen.

If the status of elector is viewed literally, such laws constitute interference with the elector's free franchise. This obviously seems legally suspect.

While faithless-elector laws have never been enforced, and thus have not been tested in court, are they legally valid?

(This is separate of the issue of whether states or parties can require electors to pledge to vote for their party's candidate—which they can.)


As you indicate, we will ultimately need to wait for the Supreme Court to weigh in on such a question, but some analysis of our own can lead to a reasonable understanding of the argument that might be made.

First, the only the thing that the Constitution actually says about the selection and voting of the state's electors is the following in Article II, Section 1, Clause 2:

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 key point of this statement is that the electors shall be appointed in a manner the state's legislature deems fit, not by some national or Constitutional standard. As a result, many of the types of laws you highlight are going to be given a fair bit of leniency from the Supreme Court. In fact, almost all election law in the United States is state law and that is why we see elections being carried out so differently from state to state with the state's Secretary of State presiding over and certifying elections.

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    As an aside - even simply having public elections to choose the Electors is technically at the discretion of the states. There'd be a huge uproar if they were to change it, but it would not be unconstitutional. – Bobson Jan 25 '15 at 4:21
  • As David Grinberg noted above, the SCOTUS ruled that States may not impose stricter limits on Congress than the Constitution defines; it is likely that SCOTUS would likewise see some form of restraints similarly – eques Nov 22 '16 at 15:06

Absolutely constitutional: the constitution leaves the determination of Electors at the discretion of the state legislature. Inherent in such discretion is the ability to condition selection up voting for a particular Candidate and the provision of penalties for failure to comply with such agreed to conditions.

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    You're going to have to back that up with something. The constitution leaves the manner of election of electors to the state, but the key is they are electors (people who meet to cast ballots). If you can tell them who they must vote for (which we'd agree most likely would be ruled out for direct elections) are they really electors? – eques Nov 22 '16 at 15:04

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