Faithless or Faithful Electors? An Analogy to Disobedient but Conscientious Jurors

Do delegates to the Electoral College have any discretion in how they vote for President or Vice President? Two pending cases call upon the Supreme Court to answer this question. This Essay draws a comparison between disobedient jurors and so-called “faithless” electors. Both jurors and electors make a pledge to follow their instructions.

However, we do not punish jurors who violate their oaths in order to discharge their duty as they see fit. We do not even call them “faithless.” We call them conscientious. This Essay explores whether electors are another example of government actors who are bound by an oath of office and yet sometimes free to break their pledge. I conclude that there is one circumstance where it takes a faithless elector to keep faith with democracy.

This circumstance is when the loser of the national vote is about to become president through the Electoral College.