Faithless elector

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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 lack faith in the pledge and vote for another candidate, or fail to vote, or choose not to vote. A pledged elector can become a faithless elector only by breaking their pledge; unpledged electors have no pledge to break.

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[which?] states, the electors are nominated in primaries, the same way other candidates are nominated. 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). The parties have generally been successful in keeping their electors faithful, leaving out the cases in which a candidate died before the elector was able to cast a vote.

During the 1836 election, Virginia's entire 23-man electoral delegation faithlessly abstained[1] from voting for victorious Democratic vice presidential nominee Richard M. Johnson[2] due to Johnson's openly admitted, publicized, long-term interracial relationship with his slave, octoroon Julia Chinn. 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. However, Virginia's electors voted for Democratic presidential nominee Martin Van Buren as pledged, meaning the presidential election itself was not in dispute. The U.S. Senate ultimately elected Johnson anyway after a party-line vote.

Despite 157 instances of faithlessness as of 2015, faithless electors have not yet affected the results or ultimate outcome of any other election for President and Vice President of the United States.

The Electoral College mechanism and the peculiar phenomenon of faithless electors provided for within it, was, in part, deliberately created as a safety measure not only to prevent a scenario of tyranny of the majority, but also to prevent the use of democracy to overthrow democracy for authoritarianism, dictatorship, kleptocracy, or other system of oppressive government.[3] American founding father Alexander Hamilton writing to Jefferson from the Constitutional Convention argued of the fear regarding the use of pure direct democracy by the majority to elect a demagogue who, rather than work for the benefit of all citizens, set out to either harm those in the minority or work only for those of the upper echelon. As articulated by Hamilton, one reason the Electoral College was created was so "that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications."[4]

Legal position[edit]

Twenty-one states do not have laws compelling their electors to vote for a pledged candidate.[5] Twenty-nine states plus the District of Columbia have laws to penalize faithless electors, although these have never been enforced.[2] In lieu of penalizing a faithless elector, some states, such as Michigan and Minnesota, specify the faithless elector's vote is void,[6] though no state has yet had cause to enforce such a provision.[citation needed]

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.[7] After an elector has voted, their vote can be changed only in states such as Michigan and Minnesota, which invalidate votes other than those pledged. In the twenty-nine states with laws against faithless electors, a faithless elector may only be punished after they vote.

U.S. Supreme Court[edit]

The constitutionality of state pledge laws was confirmed by the Supreme Court in 1952 in Ray v. Blair[8] 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:

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 in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional (emphasis added).[8]

The ruling only held that requiring a pledge, not a vote, was constitutional and Justice Jackson 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." More recent legal scholars believe "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."[9]

The Supreme Court has never ruled on the constitutionality of state laws punishing electors for actually casting a faithless vote.

History[edit]

On 22 occasions, 179 electors have not cast their votes for President or Vice President as prescribed by the legislature of the state they represented. Of those, 71 electors changed their votes because the candidate to whom they were pledged died before the electoral ballot (1872, 1912). Two electors chose to abstain from voting for any candidate (1812, 2000).[2] The remaining 106 were changed by the elector's personal interest, or perhaps by accident. Usually, the faithless electors act alone. An exception was the 1836 election, in which all 23 Virginia electors acted together.

The 1836 election was the only occasion when faithless electors altered the outcome of the electoral college vote. The Democratic ticket won states with 170 of the 294 electoral votes, but the 23 Virginia electors abstained in the vote for Vice President, so the Democratic nominee, Richard M. Johnson, got only 147 (exactly half), and was not elected. However, Johnson was elected Vice President by the U.S. Senate.

List of faithless electors[edit]

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.

2000 to present[edit]

May be more than 1 (not voted yet)2016 election: Texas Republican elector Christopher Suprun publicly pledged to not cast his vote for Donald Trump.[10] Another Texas Republican elector, Art Sisneros, willingly resigned rather than vote for Trump.[11] A Georgia Republican elector, Baoky Vu, was forced to resign after publically stating he would not vote for Trump.[12] Robert Satiacum Jr; an elector from Washington, pledged to cast his vote for Clinton if she won. If not, then he may cast his vote for a third party candidate, or not cast his electoral vote at all.[13] Another elector from Washington, Peter Chiafalohas stated that he is not sure if he will vote for Clinton. Chiafalo is still considering being a "conscientious elector" and ignoring the result of his state's popular vote. A group of members of the Electoral College calling themselves the Hamilton Electors, of which 9 have thus far made their intentions publicly known, including from the Democratic and Republican parties, plan to vote for a consensus Republican candidate rather than Democrat Hillary Clinton for Democratic electors or Republican Donald Trump for Republican electors.[14]

12004 election: An anonymous Minnesota elector, pledged for Democrats John Kerry and John Edwards, cast his or her presidential vote for "John Ewards" [sic],[15] rather than Kerry, presumably by accident.[16] (All of Minnesota's electors cast their vice presidential ballots for John Edwards.) Minnesota's electors cast secret ballots, so it is unlikely the identity of the faithless elector will ever be 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.[7]

12000 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.[17] This did not affect the outcome of the election.

1968 to 1996[edit]

11988 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.[18]

11976 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.

11972 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 vote for Nathan was the first electoral vote cast for a woman in U.S. history. MacBride became the Libertarian candidate for President in the 1976 election.

11968 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 admitted at a Senate hearing that he would have voted for Nixon if his vote would have altered the outcome of the election.

1912 to 1960[edit]

151960 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 electoral vote for Democratic non-candidate Harry F. Byrd and vice presidential for Republican Barry Goldwater, most replied they had a moral obligation to vote for Nixon; Irwin voted for Byrd and Goldwater and fourteen unpledged electors (eight from Mississippi and six from Alabama) also voted for Byrd for president, but supported Strom Thurmond for vice president.[19]

11956 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.[19]

11948 election: Tennessee elector Preston Parks was on both the Democratic Party for Harry S. Truman and the States' Rights Democratic Party for Strom Thurmond. When the Democratic Party slate won, Park voted for Thurmond and Fielding L. Wright.[19]

81912 election: Republican vice presidential candidate James S. Sherman died before the election. Eight Republican electors had pledged their votes to him but voted for Nicholas M. Butler instead.

1872 to 1896[edit]

41896 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. The People's Party won 31 electoral votes but four of those electors voted with the Democratic ticket, supporting Bryan for President and Sewall for Vice President.

11892 election: In Oregon, the electors were pledged to vote for Benjamin Harrison and three electors voted for Harrison and one faithless elector voted for the third-party Populist candidate, James B. Weaver.

631872 election: Horace Greeley was alive during the November election but died before the electoral vote. 63 out of 66 electors refused to vote for a deceased candidate, and out of those 43 cast their presidential votes for four non-candidates and 17 abstained.

1812 to 1836[edit]

231836 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 (and therefore scandalous) 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.

321832 election: Two National Republican Party electors from the state of Maryland refused to vote for presidential candidate Henry Clay and did not cast a vote for him or for his running mate, John Sergeant. All 30 electors from Pennsylvania refused to support the Democratic vice presidential candidate Martin Van Buren, voting instead for William Wilkins.

71828 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.

11820 election: William Plumer pledged to vote for Democratic-Republican candidate James Monroe, but he cast his vote for John Quincy Adams but was not a candidate in the election. Some historians contend Plumer did not feel the Electoral College should unanimously elect any President other than George Washington and Plumer wanted to draw attention to his friend Adams as a potential candidate, but these claims are disputed.[19]

41812 election: Three electors pledged to vote for Federalist vice presidential candidate Jared Ingersoll voted for Democratic-Republican Elbridge Gerry. One Ohio elector did not vote.

Before 1812[edit]

61808 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.

0 (almost 1)1800 election: Anthony Lispenard from New York, pledged to vote for Democratic-Republican candidates Thomas Jefferson and Aaron Burr, requested a secret ballot. It was presumed that he requested this in order to vote twice for his fellow New Yorker Aaron Burr, even though such a vote would have been in violation of the U.S. Constitution Article 2, Section 1, that prohibits an elector from casting both votes for an inhabitant of the same state as the elector. This additional vote would have given Burr the highest total of electoral votes so would be elected President. In the end, Lispenard caved to the pressure and voted publicly for both Jefferson and Burr, thus by common practice electors do not use secret ballots. This placed Burr and Jefferson in a tie; Jefferson was subsequently elected by the House of Representatives.[20]

To rectify the flaw in the presidential election, the 12th Amendment was ratified in 1804. It required electors to make a separate choice for president and vice president.

191796 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. An additional 18 electors voted for Adams as pledged, but refused to vote for Pinckney.[21] This was an attempt to foil Alexander Hamilton's rumored plan to elect Pinckney as President, and this resulted in the unintended result that Adams's opponent, Jefferson was elected Vice President instead of Adams's running mate Pinckney. This was the only time that the president and vice president were from different parties.

This election took place prior to the passage of the 12th Amendment, so the results were part of the impetus to have separate ballots for president and vice president.

References[edit]

  1. ^ 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 2016-11-15. in 1836...the Virginia electors abstained rather than vote for Democratic vice presidential nominee Richard Johnson 
  2. ^ a b c "Faithless Electors". FairVote.org. FairVote. Retrieved September 24, 2015. 
  3. ^ Brennan, Jason. "The Electoral College is anti-democratic—and that's a good thing". 
  4. ^ "The Avalon Project : Federalist No 68". 
  5. ^ "U. S. Electoral College: Who Are the Electors? How Do They Vote?". 
  6. ^ "Michigan Election Law Section 168.47". Legislature.mi.gov. Retrieved August 26, 2010. 
  7. ^ a b "208.08, 2008 Minnesota Statutes". Revisor.leg.state.mn.us. Retrieved May 5, 2009. 
  8. ^ a b Ray v. Blair 343 U.S. 214 (1952)
  9. ^ Sheppard, Stephen M. (May 21, 2015). "A Case For The Electoral College And For Its Faithless Elector" (PDF). Wisconsin Law Review. 2015 (1). 
  10. ^ Why I Will Not Cast My Electoral Vote for Donald Trump, 5 December 2016
  11. ^ Neetzan Zimmerman, Republican elector chooses to resign rather than vote for Trump, The Hill, November 28, 2016.
  12. ^ "Georgia GOP elector resigns after anti-Trump comments". August 3, 2016. 
  13. ^ "'Stand up for yourself': WA Democratic Elector won't vote for Clinton". November 4, 2016. 
  14. ^ "Rogue electors brief Clinton camp on anti-Trump plan". 
  15. ^ "Vote for Edwards instead of Kerry shocks Minnesota electors". December 17, 2004. 
  16. ^ "MPR: Minnesota elector gives Edwards a vote; Kerry gets other nine". News.minnesota.publicradio.org. Retrieved May 5, 2009. 
  17. ^ 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. Barbara 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. 
  18. ^ Johnson, Sharen Shaw (January 5, 1989). "CAPITAL LINE: [FINAL Edition]". USA Today. Retrieved February 11, 2016. (subscription required (help)). 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. 
  19. ^ a b c d Edwards, George (2004). Why the Electoral College Is Bad for America. Yale University Press. 
  20. ^ Timothy Noah (December 14, 2004). "Against Secret Ballots". Slate. 
  21. ^ Chernow, Ron. Alexander Hamilton. New York: Penguin, 2004. p. 514.

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