Electoral College Members Can Defy Voters’ Wishes, Court Rules

https://en.wikipedia.org/wiki/Faithless_elector

Federalist 68 says Electors were to be deliberative people, people chosen for this task, and not to any preestablished body. Electors chosen from the general mass by their fellow citizens will best be able to carry out "complicated investigations". There is no complication or investigation in the current process! It's 180 degrees from Federalist 68.

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.

The present system lends itself directly to blackmail because those with all the money both choose Electors, and are Electors. They are not chosen from the general mass, they are not chosen by the people. And further:

They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes;

What persons could possibly be more of a prostitute than party loyalists? We would be better off if the Electors were randomly selected from the general population, minus the expressly listed people in Federalist 68: politicians or other person holding a place of trust or profit.

https://avalon.law.yale.edu/18th_century/fed68.asp

In essence, the trial court took a shortcut — in software terms, an early return or -exit: The trial judge concluded that, when Colorado's secretary of state removed a member of the Colorado delegation to the Electoral College (for having voted for Kasich instead of Clinton), the removed "elector" had no legal right to sue for nominal damages because the Colorado secretary of state had the legal authority to remove the elector. The trial judge therefore summarily tossed out the removed elector's lawsuit.

The appellate court panel concluded that the trial judge got the law wrong, and therefore the removed elector did have the right to sue for nominal damages. The panel sent the case back to the trial court so that the lawsuit could (in theory) proceed normally.

The state has the right to appeal further, to the entire appellate court sitting "en banc" and/or to the Supreme Court.

Here are some excerpts from the three-judge appellate panel's opinion (which I find compelling, incidentally):

"[T]he Supremacy Clause is broader than preemption; it immunizes all federal functions from limitations or control by the states." Slip op. at 75 (citation omitted).

"Unlike the President appointing subordinates in the executive department, states appointing presidential electors are not selecting inferior state officials to assist in carrying out a function for which the state is ultimately responsible. Presidential electors exercise a federal function—not a state function—when casting their ballots. Burroughs, 290 U.S. at 545. When undertaking that federal function, presidential electors are not executing their appointing power's function but their own." Id. at 82-83.

"As the text and structure show, the Twelfth Amendment allows no room for the states to interfere with the electors’ exercise of their federal functions." Id. at 86.

"Dictionaries from the relevant period support Mr. Baca’s contention that the drafters of the Twelfth Amendment intended electors to exercise discretion in casting their votes for President and Vice President." Id. at 88.

"As these sources reflect, the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose." Id. at 90 (footnote omitted).

"In summary, the text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice." Id. at 93.

"Although we concur with [Colorado's] review of historical practice [of elector pledges], we cannot agree that these practices dictate the result the Department seeks. First, and most importantly, the practices employed—even over a long period—cannot overcome the allocation of power in the Constitution. McPherson, 146 U.S. at 35–36. Second, there is an opposing historical practice at play: a history of anomalous votes, all of which have been counted by Congress." Id. at 99. "This uninterrupted history of Congress counting every anomalous vote cast by an elector weighs against a conclusion that historical practices allow states to enforce elector pledges by removing faithless electors from office and nullifying their votes." Id. at 101.

[0] https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf