Faithless elector

  States with laws against faithless electors

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 actually 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 criminal penalties in some states. Candidates for elector are nominated by state political parties in the months prior to Election Day. In some states, the electors are nominated in primaries, the same way that other candidates are nominated. In some 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.

Although there have been 157 instances of faithlessness as of 2015, faithless electors have not yet changed the outcome of any presidential election.

Legal position

Twenty-one states do not have laws that compel their electors to vote for a pledged candidate. Twenty-nine states plus the District of Columbia have laws to penalize faithless electors, although these have never been enforced. In lieu of penalizing a faithless elector, some states, like Michigan and Minnesota, specify that the faithless elector's vote is void.

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.

The constitutionality of state pledge laws was confirmed by the Supreme Court in 1952 in Ray v. Blair. The court ruled that the states have the right to require electors to pledge to vote for the candidate to whom they are pledged, and the right to remove electors who refuse to pledge. 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 that have laws against faithless electors, a faithless elector may only be punished after they vote. Article II of the Constitution grants the power of selecting delegates to state legislatures, and subsequently the Supreme Court has ruled that, as electors are chosen via state elections, they act as a function of the state, not the federal government. Therefore states have the right to govern electors.

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

History

In 157 instances, electors have cast their votes for President or Vice President in a manner different from that prescribed by the legislature of the state they represented. Of those, 71 votes were changed because the original candidate died before the elector was able to cast a vote. Three votes were not cast at all when electors chose to abstain from casting their electoral vote for any candidate. The remaining 83 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 23 Virginia electors conspired to change their votes.

There has been only one occasion when faithless electors prevented an expected winner from winning the electoral college vote outright: in 1836, twenty-three faithless electors prevented Richard Mentor Johnson, the expected candidate, from winning the majority of votes for the Vice Presidency. However, Johnson was promptly elected Vice President by the U.S. Senate in February 1837; therefore, faithless electors have never changed the expected final outcome of the entire election process.

List of faithless electors

Electors do not have to vote for the candidate who received the most votes in any particular state. 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

1 – 2004 election: One of the Minnesota electors, pledged for Democrats John Kerry and John Edwards, cast his or her presidential vote for John Ewards [sic], rather than Kerry, presumably by accident. (All of Minnesota's electors cast their vice presidential ballots for John Edwards.) Minnesota's electors cast secret ballots, so unless one of the electors claims responsibility, it is unlikely that 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.

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 congressional representation.

1972 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.

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.

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 Theodora 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.

1912 to 1968

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.

1 – 1960 election: Oklahoma Elector Henry D. Irwin, pledged for Republicans Richard Nixon and Henry Cabot Lodge, Jr., cast his presidential electoral vote for Democratic non-candidate Harry F. Byrd and his vice presidential electoral vote for Republican Barry Goldwater. (Fourteen unpledged electors also voted for Byrd for president, but supported Strom Thurmond, then a Democrat, for vice president.)

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

1 – 1948 election: Two Tennessee electors were on both the Democratic Party and the States' Rights Democratic Party slates. When the Democratic Party slate won, one of these electors voted for the Democratic nominees Harry S. Truman and Alben W. Barkley. The other, Preston Parks, cast his votes for States' Rights Democratic Party candidates Strom Thurmond and Fielding L. Wright, making him a faithless elector.

8 – 1912 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 Murray Butler instead.

1860 to 1896

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

4 – 1892 election: In Oregon, three electors voted for Republican Benjamin Harrison and one faithless elector voted for the third-party Populist candidate, James B. Weaver. All four were pledged to President Harrison, who lost the election.

63 – 1872 election: Horace Greeley died before the electoral vote. 63 of his electors cast their presidential votes for four non-candidates instead of the late Greeley. Three of his electors voted for him anyway; these votes were not counted by Congress.

4 – 1860 election: Four electors in New Jersey, pledged for (Northern) Democrat Stephen A. Douglas, voted for the eventual victor: Republican candidate Abraham Lincoln.

1812 to 1836

23 – 1836 election: The Democratic Party nominated Richard Mentor Johnson of Kentucky as their vice presidential candidate. The 23 electors from Virginia refused to support Johnson with their votes upon learning of the allegation that he had lived with an African-American woman. There was no majority in the Electoral College, and the decision was deferred to the Senate, which supported Johnson as the Vice President.

32 – 1832 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. All 30 electors from Pennsylvania refused to support the Democratic vice presidential candidate Martin Van Buren, voting instead for William Wilkins.

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.

1 – 1820 election: William Plumer pledged to vote for Democratic-Republican candidate James Monroe, but he cast his vote for John Quincy Adams, who was also a Democratic-Republican, but not a candidate in the 1820 election. Some historians contend that Plumer did not feel that the Electoral College should unanimously elect any President other than George Washington, but this claim is disputed. (Monroe lost another three votes because three electors died before casting ballots and were not replaced.)

4 – 1812 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

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

1 - 1800 election: A faithless elector in New York voted twice for Aaron Burr, but this violated electoral college rules, so the second vote was re-assigned to Thomas Jefferson. This would have been enough to give Burr the presidency, but the state re-assigned the second vote to Jefferson because Article 2, Section 3, of the Constitution prohibited an elector from casting both his votes for an inhabitant of the same state as the elector; Burr was a resident of New York. In the end Jefferson would be awarded the Presidency after 36 ballots in the House of Representatives following a tie in the delegate count during the election.

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. An additional 18 electors voted for Adams as pledged, but refused to vote for Pinckney. (This election took place prior to the passage of the 12th Amendment, so there were not separate ballots for president and vice president.)

External links

• List of Electors Bound by State Law and Pledges, as of November 2000
• "The Electoral College – "Faithless Electors"". Official website of the Center for Voting and Democracy. 2002. Retrieved December 5, 2006.
• "Faithless Electors". Website of FairVote, formerly the Center for Voting and Democracy. Retrieved June 11, 2008.