Faithless elector

In United States presidential elections, a faithless elector is a member of the United States Electoral College who does not vote for the presidential or vice presidential candidate for whom they had pledged to vote. That is, they break faith with the candidate they were pledged to and vote for another candidate, or fail to vote. A pledged elector is only considered a faithless elector by breaking their pledge; unpledged electors have no pledge to break.

This article is about faithless electors in general. For the article specific to the 2016 United States Presidential election, see Faithless electors in the 2016 United States presidential election.
  State laws may impose a fine on an elector who fails to vote according to the statewide or district popular vote, force an elector to vote for the candidate they pledged to vote, or disqualify an elector who violates their pledge and provide a replacement elector.[1]

Electors are typically chosen and nominated by a political party or the party's presidential nominee: they are usually party members with a reputation for high loyalty to the party and its chosen candidate. Thus, a faithless elector runs the risk of party censure and political retaliation from their party, as well as potential legal penalties in some states. Candidates for elector are nominated by state political parties in the months prior to Election Day. In some states, such as Indiana, the electors are nominated in primaries, the same way other candidates are nominated.[2] In other states, such as Oklahoma, Virginia, and North Carolina, electors are nominated in party conventions. In Pennsylvania, the campaign committee of each candidate names their candidates for elector (an attempt to discourage faithless electors). In some states, high-ranking and/or well-known state officials up to and including governors often serve as electors whenever possible (the Constitution prohibits federal officials from acting as electors, but does not restrict state officials from doing so). The parties have generally been successful in keeping their electors faithful, leaving out the rare cases in which a candidate died before the elector was able to cast a vote.

There have been a total of 165[3] instances of faithlessness as of 2016, 63 of which occurred in 1872 when Horace Greeley died after Election Day but before the Electoral College convened. Nearly all have voted for third party candidates or non-candidates, as opposed to switching their support to a major opposing candidate. During the 1836 election, Virginia's entire 23-man electoral delegation faithlessly abstained[4] from voting for victorious Democratic vice presidential nominee Richard M. Johnson.[3] The loss of Virginia's support caused Johnson to fall one electoral vote short of a majority, causing the vice presidential election to be thrown into the U.S. Senate for the only time in American history. The presidential election itself was not in dispute because Virginia's electors voted for Democratic presidential nominee Martin Van Buren as pledged. The U.S. Senate ultimately elected Johnson as vice president after a party-line vote.

The United States Constitution does not specify a notion of pledging; no federal law or constitutional statute binds an elector's vote to anything. All pledging laws originate at the state level.[5][6]

Thirty-two states plus the District of Columbia have laws against faithless electors, though a majority contain no enforcement mechanism.[7][8] Washington became the first state to fine faithless electors after the 2016 election. In lieu of penalizing a faithless elector, some states such as Colorado, Michigan, and Minnesota specify a faithless elector's vote be voided.[9] Colorado was the first state to void an elector's attempted faithless vote during the 2016 electoral college vote. Minnesota also invoked this law for the first time in 2016 when an elector pledged to Hillary Clinton attempted to vote for Bernie Sanders instead.[10] Until 2008, Minnesota's electors cast secret ballots. Although the final count would reveal the occurrence of faithless votes (except in the unlikely case of two or more changes canceling out), it was impossible to determine which elector(s) were faithless. After an unknown elector was faithless in 2004, Minnesota amended its law to require public balloting of the electors' votes and invalidate any vote cast for someone other than the candidate to whom the elector was pledged.[11]

After the 2016 election, electors who attempted to switch their votes in Washington and Colorado were subjected to enforcement of their state's faithless elector laws. The electors received legal assistance from the non-profit advocacy group Equal Citizens founded by Lawrence Lessig. The Colorado case, Baca v. Colorado Department of State, was initially dismissed by the United States District Court for the District of Colorado. On appeal, the 10th Circuit ruled that Colorado's faithless elector law is unconstitutional.[12] Specifically, the opinion held that electors have a constitutional right to vote for the presidential candidate of their choice and are not bound by any prior pledges they may have made. The opinion said the act of voting for president in the electoral college is a federal function not subject to state law and state laws requiring electors to vote only for the candidates they pledged are unconstitutional and unenforceable. On October 16, 2019, Colorado appealed the 10th Circuit's decision to the Supreme Court.[13][14]

The decision conflicts with an earlier decision by the Washington Supreme Court In re Guerra, in which three electors who had $1000 fines imposed on them for violating their pledges appealed the fines, which were upheld. In contrast to the Colorado case, the court held that presidential electors are state officials under the control of state law and can be criminally punished by a state if they do not vote as they pledged. On October 7, 2019, the electors appealed their case to the U.S. Supreme Court.[15][16]

U.S. Supreme Court

The constitutionality of state pledge laws was confirmed by the Supreme Court in 1952 in Ray v. Blair[17] in a 5–2 vote. The court ruled states have the right to require electors to pledge to vote for the candidate whom their party supports, and the right to remove potential electors who refuse to pledge prior to the election. The court also wrote:[17]

However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose [emphasis added] in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.

— U.S. Supreme Court, Ray v. Blair, 1952

The ruling only held that requiring a pledge, not a vote, was constitutional and Justice Jackson, joined by Justice Douglas, wrote in his dissent, "no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices."[17] One recent legal scholar believes "a state law that would thwart a federal elector’s discretion at an extraordinary time when it reasonably must be exercised would clearly violate Article II and the Twelfth Amendment".[18]

The Supreme Court has yet to rule on the constitutionality of state laws punishing or replacing electors for actually casting a faithless vote, or refusing to count said votes.[19] On January 17, 2020, the Supreme Court agreed to hear Colorado Department of State v. Baca and Chiafalo v. Washington (mentioned above) to resolve this question as to whether states can constitutionally punish faithless electors.[20]

History

Over 58 elections, 165 electors have not cast their votes for president or vice president as prescribed by the legislature of the state they represented.[3] Of those:

  • 71 electors changed their votes because the candidate to whom they were pledged died before the electoral ballot (in 1872 and 1912).
  • 1 elector chose to abstain from voting for any candidate (in 2000).
  • 93 were changed typically by the elector's personal preference, although there have been some instances where the change may have been caused by an honest mistake.

Usually, faithless electors act alone, although on occasion a faithless elector has attempted to induce other electors to change their votes in concert, usually with little if any success. One exception was the 1836 election, in which all 23 Virginia electors acted together, altering the outcome of the electoral college vote but failing to change the outcome of the overall election. The Democratic ticket won states with 170 of the 294 electoral votes, but the 23 Virginia electors abstained in the vote for vice president, meaning the Democratic nominee, Richard M. Johnson, got only 147 votes, exactly half of the electoral college (one short of being elected). Johnson was subsequently elected vice president by the U.S. Senate.

List of faithless electors

The following is a list of all faithless electors (in reverse chronological order). The number preceding each entry is the number of faithless electors for the given year.

2016

10 – 2016 election: In Washington, Democratic party electors gave three presidential votes to Colin Powell and one to Faith Spotted Eagle[21] and these electors cast vice presidential votes for Elizabeth Warren, Maria Cantwell, Susan Collins, and Winona LaDuke. In Hawaii, Bernie Sanders received one presidential vote and Elizabeth Warren received one vice-presidential vote. In Texas, Christopher Suprun voted for John Kasich for President and another elector voted for Ron Paul, giving each one presidential vote. Suprun also voted for Carly Fiorina as vice-president while the other elector voted for Mike Pence as pledged.[22]

In addition, three other electors attempted to vote against their pledge, but had their votes invalidated. In Colorado, Kasich received one vote for president, which was invalidated.[23] Two additional electors, one in Maine and one in Minnesota, cast votes for Sanders for president but had their votes invalidated; the elector in Maine was forced to cast a vote for Clinton, while the elector in Minnesota was replaced by one who cast a vote for Clinton. The same Minnesota elector voted for Tulsi Gabbard for vice president, but had that vote invalidated and given to Tim Kaine.

2000 to 2004

1 – 2004 election: An anonymous Minnesota elector, pledged for Democrats John Kerry and John Edwards, cast his or her presidential vote for "John Ewards" [sic],[24] rather than Kerry, presumably by accident.[25] (All of Minnesota's electors cast their vice presidential ballots for John Edwards.) Minnesota's electors cast secret ballots, so the identity of the faithless elector is not known. As a result of this incident, Minnesota statutes were amended to provide for public balloting of the electors' votes and invalidation of a vote cast for someone other than the candidate to whom the elector is pledged.[11]

1 – 2000 election: Washington, D.C. elector Barbara Lett-Simmons, pledged for Democrats Al Gore and Joe Lieberman, cast no electoral votes as a protest of Washington D.C.'s lack of voting congressional representation.[19] Lett-Simmons's electoral college abstention, the first since 1864, was intended to protest what Lett-Simmons referred to as the federal district's "colonial status".[19] Lett-Simmons described her blank ballot as an act of civil disobedience, not an act of a faithless elector; Lett-Simmons supported Gore and would have voted for Gore if she had thought he had a chance to win.[19]

1968 to 1996

1 – 1988 election: West Virginia Elector Margarette Leach, pledged for Democrats Michael Dukakis and Lloyd Bentsen, but as a form of protest against the winner-take-all custom of the Electoral College, instead cast her votes for the candidates in the reverse of their positions on the national ticket; her presidential vote went to Bentsen and her vice presidential vote to Dukakis.[26]

1 – 1976 election: Washington Elector Mike Padden, pledged for Republicans Gerald Ford and Bob Dole, cast his presidential electoral vote for Ronald Reagan, who had challenged Ford for the Republican nomination. He cast his vice presidential vote, as pledged, for Dole.[27]

1 – 1972 election: Virginia Elector Roger MacBride, pledged for Republicans Richard Nixon and Spiro Agnew, cast his electoral votes for Libertarian candidates John Hospers and Tonie Nathan. MacBride's VP vote for Nathan was the first electoral vote cast for a woman in U.S. history.[28]

1 – 1968 election: North Carolina Elector Lloyd W. Bailey, pledged for Republicans Richard Nixon and Spiro Agnew, cast his votes for American Independent Party candidates George Wallace and Curtis LeMay. Bailey later stated at a Senate hearing that he would have voted for Nixon and Agnew if his vote would have altered the outcome of the election.[29]

1912 to 1960

1 – 1960 election: Oklahoma Elector Henry D. Irwin, pledged for Republicans Richard Nixon and Henry Cabot Lodge, Jr., contacted the other 218 Republican electors to convince them to cast presidential electoral votes for Democratic non-candidate Harry F. Byrd and vice presidential electoral votes for Republican Barry Goldwater, though most replied they had a moral obligation to vote for Nixon; Irwin voted for Byrd and Goldwater. Fourteen unpledged electors (eight from Mississippi and six from Alabama) also voted for Byrd for president, but supported Strom Thurmond for vice president – since they were not pledged to anyone, their action was not faithless.[30]

1 – 1956 election: Alabama Elector W. F. Turner, pledged for Democrats Adlai Stevenson and Estes Kefauver, cast his votes for circuit judge Walter Burgwyn Jones and Herman Talmadge.[30]

1 – 1948 election: Tennessee elector Preston Parks was on both the Democratic Party for Harry S. Truman and the States' Rights Democratic Party for Strom Thurmond. Parks actively campaigned for Thurmond. When the national Democratic Party slate won, he voted for Thurmond and Fielding L. Wright.[30]

8 – 1912 election: Republican vice presidential candidate (and incumbent Vice President) James S. Sherman died before the popular election. Nicholas M. Butler was hastily designated to receive the electoral votes that would have gone to Sherman. The Republicans only carried two states with eight electoral votes between them. All eight Republican electors voted for Butler for Vice President.[3]

1872 to 1896

27 – 1896 election: The Democratic Party and the People's Party both ran William Jennings Bryan as their presidential candidate, but ran different candidates for Vice President: the Democratic Party nominated Arthur Sewall and the People’s Party nominated Thomas E. Watson. Although the Populist ticket did not win the popular vote in any state, 27 Democratic electors for Bryan cast their vice-presidential vote for Watson instead of Sewall.[31]

1 – 1892 election: The electors of Oregon were pledged to vote for Benjamin Harrison, with three electors doing so and one faithless elector voting for the third-party Populist candidate, James B. Weaver.[32]

63 – 1872 election: Horace Greeley, the Liberal Republican/Democrat nominee for the November 5 election, died on November 29, before the electoral vote. 63 of the 66 electors pledged to Greeley declined to vote for a deceased candidate; 18 of them cast their presidential votes for Greeley's running mate, Benjamin Gratz Brown, and 45 cast their presidential votes for three non-candidates. The three posthumous presidential votes cast for Greeley were rejected by Congress. [33]

1812 to 1840

1 – 1840 election: One elector from Virginia, Arthur Smith of Isle of Wight County, was pledged to vote for Democratic candidates Martin Van Buren (for President) and Richard M. Johnson (for Vice President). However, he voted for James K. Polk for Vice President.[34]

23 – 1836 election: The 23 electors from Virginia were pledged to vote for Democratic candidates Martin Van Buren (for President) and Richard M. Johnson (for Vice President). However, they abstained from voting for Johnson, because of his open liaison with a slave mistress. This left Johnson with one fewer than a majority of electoral votes. Johnson was subsequently elected Vice President by the Senate.

30 – 1832 election: All 30 electors from Pennsylvania refused to support the Democratic vice presidential candidate Martin Van Buren, voting instead for William Wilkins.[3]

7 – 1828 election: Seven of nine electors from Georgia refused to vote for vice presidential candidate John C. Calhoun. All seven cast their vice presidential votes for William Smith instead.[3]

1 – 1820 election: William Plumer was pledged to vote for Democratic-Republican candidate James Monroe, but he cast his vote for John Quincy Adams, who was not a candidate in the election. Some historians contend Plumer wanted George Washington to be the only unanimous selection and that he further wanted to draw attention to his friend Adams as a potential candidate. These claims are disputed.[30] (Plumer cast his vice presidential vote for Richard Rush, not Daniel D. Tompkins.)

3 – 1812 election: Three electors pledged to vote for Federalist vice presidential candidate Jared Ingersoll voted for Democratic-Republican Elbridge Gerry.[3]

Before 1812

6 – 1808 election: Six electors from New York were pledged to vote for Democratic-Republican James Madison for President and George Clinton for Vice President. Instead, they voted for Clinton to be President, with three voting for Madison for Vice President and the other three voting for James Monroe for Vice President.[3]

19 – 1796 election: Samuel Miles, an elector from Pennsylvania, was pledged to vote for Federalist presidential candidate John Adams, but voted for Democratic-Republican candidate Thomas Jefferson. He cast his other presidential vote as pledged for Thomas Pinckney; there was no provision at the time for specifying president or vice president. An additional 18 electors voted for Adams as pledged, but refused to vote for Pinckney.[35] This was an attempt to foil Alexander Hamilton's rumored plan to elect Pinckney as President, and this resulted in the unintended outcome that Adams' opponent, Jefferson, was elected Vice President instead of Adams' running mate Pinckney. This was the only time in U.S. history that the president and vice president have been from different parties, except for 1864 (although in that year, while the president and vice president were from different parties, they ran on one ticket from the same Third Party), and the only time the winners were from different tickets. After the 1800 election resulted in a deadlock, the Twelfth Amendment was ratified in 1804. It changed the election procedure so that instead of casting two votes of the same type, electors would make an explicit choice for president and vice president.

See also

References
  1. "The Electoral College". National Conference of State Legislatures.
  2. "About the Electors". National Archives and Records Administration.
  3. "Faithless Electors". Fair Vote. Retrieved March 19, 2020.
  4. Sabato, Larry J.; Ernst, Howard R. (May 14, 2014). Encyclopedia of American Political Parties and Elections. Infobase Publishing. p. 133. ISBN 978-1-4381-0994-7. Retrieved November 15, 2016. in 1836...the Virginia electors abstained rather than vote for Democratic vice presidential nominee Richard Johnson
  5. Openshaw, Pamela Romney (2014). Promises Of The Constitution: Yesterday Today Tomorrow. BookBaby. p. 10.3. ISBN 9781483529806.
  6. Ross, Tara (2017). The Indispensable Electoral College: How the Founders' Plan Saves Our Country from Mob Rule. Gateway Editions. p. 26. ISBN 9781621577072.
  7. "Faithless Elector State Laws". Fair Vote. Retrieved March 4, 2020.
  8. "Laws Binding Electors". Retrieved March 4, 2020.
  9. "Michigan Election Law Section 168.47". Legislature.mi.gov. Retrieved August 26, 2010.
  10. "Minnesota electors align for Clinton; one replaced after voting for Sanders".
  11. "208.08, 2008 Minnesota Statutes". Revisor.leg.state.mn.us. Retrieved May 5, 2009.
  12. Paul, Jesse (August 21, 2019). "Colorado's presidential electors don't have to vote for candidate who wins the state, federal appeals court rules". The Colorado Sun. Retrieved August 22, 2019.
  13. Paul, Jesse (October 16, 2019). "Colorado asks U.S. Supreme Court to overturn decision allowing presidential electors to vote for whomever they want". Colorado Sun.
  14. "Petition for writ of certiorari" (PDF). Colorado Attorney General. Retrieved October 18, 2019.
  15. "Supreme Court asked to decide whether electors must vote for state popular vote winner". Jurist. Retrieved October 18, 2019.
  16. "Petition for writ of certiorari" (PDF). Equal Citizens. Retrieved October 18, 2019.
  17. Ray v. Blair 343 U.S. 214 (1952)
  18. Sheppard, Stephen M. (May 21, 2015). "A Case For The Electoral College And For Its Faithless Elector" (PDF). Wisconsin Law Review. 2015 (1).
  19. Stout, David (December 19, 2000). "The 43rd President: The Electoral College; The Electors Vote, and the Surprises Are Few". The New York Times. Retrieved November 30, 2009. But it was Mr. Gore who suffered an erosion today. Lett-Simmons, a Gore elector from the District of Columbia, left her ballot blank to protest what she called the capital's "colonial status" – its lack of a voting representative in Congress.
  20. "'Faithless elector': Supreme Court will hear case that could change how presidents are chosen". NBC News. January 17, 2020.
  21. "Four Washington state electors break ranks and don't vote for Clinton". The Seattle Times. December 19, 2016. Retrieved December 19, 2016.
  22. Walsh, Sean Collins (December 19, 2016). "All but 2 Texas members of the Electoral College choose Donald Trump". Statesman. Retrieved December 24, 2016.
  23. Detrow, Scott. "Donald Trump Secures Electoral College Win, With Few Surprises". NPR. Retrieved December 19, 2016.
  24. "Vote for Edwards instead of Kerry shocks Minnesota electors". December 17, 2004. Archived from the original on December 17, 2004.CS1 maint: BOT: original-url status unknown (link)
  25. "MPR: Minnesota elector gives Edwards a vote; Kerry gets other nine". News.minnesota.publicradio.org. Retrieved May 5, 2009.
  26. Johnson, Sharen Shaw (January 5, 1989). "Capital Line: [Final Edition]". USA Today. ProQuest 306154768. Even though Bensten sought the vice presidency, Margarette Leach of West Virginia voted for him to protest the Electoral College's winner-take-all custom.
  27. Edwards, George C. (2011). Why the Electoral College Is Bad for America: Second Edition.
  28. Boaz, David (2008). "Nathan, Tonie (1923-)". In Hamowy, Ronald (ed.). Nathan, Toni (1923– ). The Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE; Cato Institute. p. 347. doi:10.4135/9781412965811.n212. ISBN 978-1-4129-6580-4. LCCN 2008009151. OCLC 750831024.
  29. "Tales of the Unfaithful Electors: Dr. Lloyd W. Bailey". EC: The US Electoral College Web Zine. Retrieved May 17, 2008.
  30. Edwards, George (2004). Why the Electoral College Is Bad for America. Yale University Press.
  31. "Senate and House Secured; Republican control in the next Conress assured. The House of Representatives Repub- lican by More than Two – thirds Ma- jority – Possible Loss of a Repub- lican Senator from the State of Washington – Republicans and Pop- ulists Will Organize the Senate and Divide the Patronage". The New York Times. November 9, 1894. Retrieved May 26, 2010.
  32. "Archived copy". Archived from the original on November 14, 2013. Retrieved 2013-11-13.CS1 maint: archived copy as title (link)
  33. "Electoral College Box Scores 1789–1996". National Archives and Records Administration. Retrieved July 31, 2005.
  34. Niles National Register, Vol. LIX, December 5, 1840, page 217
  35. Chernow, Ron. Alexander Hamilton. New York: Penguin, 2004. p. 514.
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