Faithless elector

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  States with laws punishing faithless electors

In United States presidential elections, a faithless elector is a member of the United States Electoral College who, for whatever reason, does not vote for the presidential or vice presidential candidate for whom he or she had pledged to vote. They may vote for another candidate or not vote at all. Faithless electors are pledged electors and thus different from unpledged electors.

Electors are typically chosen and nominated by a political party or the party's presidential nominee. Electors usually are party members with a reputation for high loyalty to the party and its candidate. A faithless elector runs the risk of party censure and political retaliation from his party as well as, in some states, potential criminal penalties. 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).[1] 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 cases of faithlessness, faithless electors have not changed the outcome of any presidential election to date.

Legal position

Twenty-one states do not have laws that compel their electors to vote for a pledged candidate.[2] Twenty-nine states plus the District of Columbia have laws to penalize faithless electors,[3] although these have never been enforced.[4] In place of penalizing a faithless elector, some states, like Michigan and Minnesota, specify that the faithless elector's vote is void.[5]

Until 2008, Minnesota's electors cast secret ballots, so that it was not possible to tell if a particular elector was faithless. When in 2004 an unknown elector was faithless, Minnesota law was 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.[6]

The constitutionality of state pledge laws was confirmed by the Supreme Court in 1952 in Ray v. Blair.[7] The court ruled in favor of the state's right to require electors to pledge to vote for the candidate to whom they are pledged, as well as to remove electors who refuse to pledge. Once the elector has voted, his or her vote can be changed only in states such as Michigan and Minnesota, where votes other than those pledged are rendered invalid. In all twenty-four states, a faithless elector may only be punished after he or she votes. 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 constitutionality of state laws punishing electors for actually casting a faithless vote—rather than merely refusing to pledge—has never been decided by the Supreme Court.

History

In more than 150 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. Two votes were not cast at all when electors chose to abstain from casting their electoral vote for any candidate. The remaining 85 were changed by the elector's personal interest, or perhaps by accident. Usually, the faithless electors act alone. An exception was the U.S. presidential election of 1836, in which 23 Virginia electors conspired to change their vote together.

As of the 2012 presidential election, there has been only one occasion when faithless electors prevented an expected winner from winning the electoral college vote: in December 1836, twenty-three faithless electors prevented Richard Mentor Johnson, the expected candidate, from winning 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 chronological order). The number preceding each entry is the number of faithless electors for the given year.

Election year Faithless electors Notes
1796 1 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. (This election took place prior to the passage of the 12th Amendment, so there were not separate ballots for president and vice president.)
1800 — New York elector Anthony Lispenard demanded to be able to cast a secret ballot, rather than a public one as state law required, apparently because he wanted to cast both of his votes for Aaron Burr instead of one each for Burr and Thomas Jefferson. This demand was necessary to force Burr's election as President, since voting for Burr and someone else would have (in theory) simply created a deadlock in the electoral college and a run-off vote, which Jefferson would have likely won. However, Lispenard's demand was rejected by the state, and he voted as pledged, for Jefferson and Burr.[8] Ironically, errors in the Democratic-Republican voting strategy meant that Jefferson and Burr ended up tying 73-73 in the electoral college, meaning that Lispenard could have caused Burr to become President all along by simply not casting his second vote, or voting for someone who was not a candidate, although he had no way of knowing this would be the case when he voted.
1808 6 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.
1812 4 Three electors pledged to vote for Federalist vice presidential candidate Jared Ingersoll voted for Democratic Republican Elbridge Gerry. One Ohio elector did not vote.
1820 1 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 was 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.)
1828 7 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.
1832 32 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.
1836 23 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 because of the fact that he had previously lived with and fathered children with an African-American woman. As a result, although the Democratic presidential nominee Martin Van Buren won a majority of electoral votes, no vice-presidential candidate won a majority. The decision was therefore made by the U.S. Senate. The Senate elected Johnson as the Vice President, including votes for Johnson by both of Virginia's senators.
1860 — In New Jersey, where a fusion ticket was attempted, a Democratic supporter of Douglas refused to issue fusion tickets that would have supported Breckinridge. As a result, only three Democratic electors were chosen (all supporters of Douglas), and the other four electors chosen were Republican supporters of Abraham Lincoln.[9]
1872 63 Democrat Horace Greeley died after electors were chosen but before the electoral vote could be cast. Three of Greeley's 66 electors cast their presidential votes for Greeley and had their votes discounted by Congress, while the rest split their votes among four other individuals.
1896 4 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.
1948 1 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 Truman and Alben Barkley. The other, Preston Parks, cast his votes for States' Rights Democratic Party candidates Strom Thurmond and Fielding Wright, making him a faithless elector.
1956 1 Alabama Elector W. F. Turner, pledged for Democrats Adlai Stevenson and Estes Kefauver, cast his votes for Walter Burgwyn Jones and Herman Talmadge.
1960 1 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 Flood 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.)
1968 1 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.
1972 1 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.
1976 1 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.
1984 — In Illinois, the electors, pledged to Ronald Reagan and George H. W. Bush, conducted their vote in a secret ballot. When the electors voted for Vice President, one of the votes was for Geraldine Ferraro, the Democratic nominee. After several minutes of confusion, a second ballot was taken. Bush won unanimously in this ballot, and it was this ballot that was reported to Congress.
1988 1 West Virginia Elector Margaret Leach, pledged for Democrats Michael Dukakis and Lloyd Bentsen, 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.
2000 1 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 representation in Congress, which she described as the federal district's "colonial status".[10][11]
2004 1 A Minnesota elector, pledged for Democrats John Kerry and John Edwards, cast his or her presidential vote for John Ewards [sic],[12] rather than Kerry, presumably by accident.[13] (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 law was 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.[4]

References

  1. ↑ ElectoralVote.com – Current Assigning of Electors
  2. ↑ For 2000 list of 24 states, see
  3. ↑ FairVote
  4. ↑ 4.0 4.1 "The Electoral College - "Faithless Electors"". Fairvote.org. Retrieved May 5, 2009. 
  5. ↑ "Michigan Election Law Section 168.47". Legislature.mi.gov. Retrieved 2010-08-26. 
  6. ↑ "208.08, 2008 Minnesota Statutes". Revisor.leg.state.mn.us. Retrieved May 5, 2009. 
  7. ↑ Ray v. Blair 343 U.S. 214 (1952)
  8. ↑ Edwards, George C., III (2004). Why the Electoral College is Bad for America. New Haven, Conn.: Yale University Press. p. 12. ISBN 0300100604. 
  9. ↑ "New Jersey's Vote in 1860". NY Times. December 26, 1892. 
  10. ↑ 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." 
  11. ↑ "The Green Papers". The Green Papers. Retrieved 2010-08-26. 
  12. ↑ Vote for Edwards instead of Kerry shocks Minnesota electors Dane Smith, Star Tribune, December 14, 2004, archived on December 17, 2004 from the original
  13. ↑ "MPR: Minnesota elector gives Edwards a vote; Kerry gets other nine". News.minnesota.publicradio.org. Retrieved May 5, 2009. 

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