timhuge

Here's the most careful response to this question I've seen:

Yet there would still remain the question: For whom should such an elector now vote? Does the judgment, “I cannot in good faith support Trump,” mean the elector is free to vote for whomever she wishes?

There is a strong argument—and I believe, ultimately, this is the correct argument—that if an elector cannot vote for the candidate to whom she is pledged, she ought to vote for the next best candidate among those the public actually voted for. That candidate is Hillary Clinton in every state, and especially the three swing states that ultimately decided the result. And it is my view that an elector unable to support Trump has an ethical obligation to vote for Clinton.

Yet it is the most strikingly depressing truth about our current time that partisanship renders this choice almost unthinkable. We have entered the age of “party over country,” which makes the very notion of a Republican elector voting for a Democratic candidate impossible. One would have thought that after an election, recognizing the candidate who received the most votes would not be a partisan act, but a factual acknowledgment. But that’s not how the electors apparently view their role. They, partisans, feel themselves committed as partisans, forgetting that they are actually citizens first.

This reality has led some Democratic electors to try to work out a deal. The “Hamilton Electors,” as they’ve called themselves, are working to persuade Trump electors to join them in voting for John Kasich. If at least 37 Republicans join, then the election would be thrown to the House of Representatives. And with one vote per state, the House would select the president from among the three top vote-getters. Mortally wounded by an Electoral College defeat, these Hamilton Electors hope that choice would not be Trump. From the standpoint of high principle, and Electoral College ethics, this is a hard move to justify. Clinton electors have no good faith reason not to vote for Clinton. Electors defecting from Trump, in my view at least, have no justification for voting for anyone except someone the public has actually voted for. And moreover, the Electoral College was expressly designed to avoid just this sort of collusion. The Framers thought making electors vote on the same day in different states would make it impossible for them to coordinate.

Yet from the perspective of practical politics, this grand compromise is making more and more sense. If there are 37 electors who cannot in good conscience support Donald Trump, they should at least give the House of Representatives the opportunity to choose a candidate who might unite a nation fractured by a bitter and divisive campaign. That candidate would need to be a Republican. Ideally, the college would also give the Senate the chance to select a Democrat for vice president. This split ticket might unite America over the next four years, and possibly avoid a spiral into civil war.

This is not how it should be. We should have a system for electing our President that counts all votes equally. We don’t. We should not have a system in which electors think about strategic voting. We do. And months after a vote, we should not still be wondering who our next President will be. As many still are. But in the face of bitter and violent clashes, it may well be time once again for an extraordinary intervention by Congress. But unlike the intervention that spurned Andrew Jackson and Samuel J. Tilden, this time it would be pushed not from the top down, but from an incredible swell of energy coming from the bottom up. If the winner of the popular vote cannot be President, maybe it’s right that the loser shouldn’t be either.

At least this the conscience of the electors could decide.

Lessig's most thorough answer has gotten lost in the threads below:

Ok, fair. I was trying to say two things together -- obviously poorly.

One thing is to resolve an ambiguity some thing the referendum president raises: Am I president only for that one issue. No.

The other is to say what I would do with a long list of specific proposals. That the bit I meant by a trustee for the VP — so decide things that make the next administration as effective and successful as it can be — except to the extent it interferes with the task of passing the CEA or is something I could not morally do.

E.g., Congress passes a law defunding planned parenthood. I'm against it. I'm sure the VP is against it. I exercise my power to veto it.

A Supreme Court justice passes away: I nominate a great jurist (including politicians among those) who advances a conception of the constitution that I believe in — keeping the constitution alive, consistent with values expressed in it. That's nothing to do with the VP. That's everything to do with me.

A national VAT: That's a judgment tied to the VP. Not hers, but one which I would make in light of her judgment.

Article VI of the Constitution states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

There has been one Supreme Court decision on a related question in the 1950's. In short,

Ray v. Blair is ultimately inconclusive on the question of whether a state’s law seeking to limit elector discretion can be enforced against a faithless elector. In particular, it did not address what may be the most significant issue with respect to enforceability — the Constitution’s requirement that the electors “vote by ballot.” As previously noted, most scholars assume that “vote by ballot” means vote by secret ballot. But unless an elector announces his or her intention beforehand to vote for someone other than the candidate on whose slate the elector ran, it will be impossible to know whether the elector has been faithless until after the votes have been cast.

The UFPEA states and some other states with similar rules seek to overcome this difficulty by requiring that the Secretary of State examine the ballots before recording them. But if the requirement in Article II and the Twelfth Amendment that electors vote by ballot means vote by secret ballot, that requirement is unconstitutional. Suffice it to say, this issue has never been tested. To be sure, it appears that the practice in many states is to have non-secret oral voting. The laws of at least one state (Colorado) specifically call for vote by “open ballot.” But this practice may very well be unconstitutional.

Nonetheless, court challenges to these state laws have so far been rejected, though appeals are ongoing.

In the worst case scenario, we could pass a Constitutional amendment to have a popular vote elect the President in the future and prevent the sort of thing you're talking about. But it will be difficult for people to make the case that future candidates are as bad as Donald Trump. He is literally unprecedented in 228 years of U.S. presidents in several ways:

• The USA Today Editorial Board had never before made an endorsement in any presidential race until it declared Mr. Trump “unfit for the presidency.” A number of other newspapers known for reliably endorsing Republicans likewise refused to endorse Mr. Trump, citing his “dangerous lack of judgment and impulse control” and calling him “narcissistic and morally bankrupt.” Seen as a whole, the consensus against Trump is unprecedented:
• Mr. Trump would be the first U.S. president in history without any government or military experience.
• Mr. Trump has so far been dismissive of concerns about the unprecedented conflicts of interest involved in continuing his ownership of his international business as President. He appears poised to violate the “foreign emoluments clause” of the Constitution. As the first major party candidate in 30 years not to release his tax returns, his lack of transparency is also historic.
• The interference of a major foreign power, Vladimir Putin’s Russia, in the presidential election, not to mention Mr. Trump’s ties to Russia and his praise of Putin, is unprecedented.
• Voters in the 2016 election were barraged with an unprecedented volume of misinformation, some from fake news stories shared on social media, but primarily from Donald Trump, himself, whose falsehoods averaged one per minute during the debates.
• Mr. Trump has been declared unfit for the presidency by an unprecedented range of leaders loyal to his party: conservative Catholics, Evangelicals, senior GOP national security officials, the past three chairs of the RNC, George Will, Glenn Beck, Erick Erickson, and prominent constitutional originalists. In addition, 75 retired senior diplomats called Mr. Trump “entirely unqualified to serve as President” and 10 former nuclear launch control officers said Mr. Trump “should not be entrusted with the nuclear launch codes.”

For links to sources backing each of these factual claims, see: https://medium.com/@THuegerich/the-founding-fathers-made-electors-free-to-reject-trump-ed7a53fbbd81#.ec6gh5ak5

Whatever your opinion of how electors should vote, we can all agree that their choices should not be constrained by threats of violence. That is true with respect to the unhinged individuals who are apparently already emailing some of them death threats. It is also true with respect to the charge that electors would be responsible for any violence in retaliation to their conscientious rejection of Mr. Trump.[1]

If awareness of the possibility of conscientious electors is allowed to be discussed openly over the next four weeks, it would no longer be perceived as such a shock on December 19th. As recently as 2000, an election was decided by a similarly unexpected turn of events, and the country showed itself capable of maintaining calm and moving forward. To the extent fears of violence in 2016 are heightened by the fervor of Mr. Trump’s supporters, that cannot be allowed to sway electors’ decisions. There is a word for yielding to threats of violence in the futile hope of indefinitely putting off the inevitable: appeasement.

[1] There is irony here on several levels. There was previously a fear of violence if the November election did not go Mr. Trump’s way, since he had flippantly predicted a “rigged election” for weeks beforehand (predictably abandoning that rhetoric when events went his way). Even further back, when it briefly appeared that Mr. Romney had won the 2012 popular vote, Mr. Trump explicitly called for a “revolution” over the injustice of the Electoral College. Needless to say, he came to view our Constitution’s process for electing presidents differently after winning the majority of electors himself despite losing the popular vote. Is not Mr. Trump’s flirtation with violence and casual disregard for our core institutions just as strong a reason for electors to reject him as it is an inducement to go along with him, if not stronger?