Faithless elector

Faithless elector laws by state 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 in an attempt to discourage faithless electors. In some states, high-ranking 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.

As of the 2024 election, there have been a total of 165 instances of faithlessness, 90 of which were for president, while 75 were for vice president. They have never swung an election, the U.S. Supreme Court upheld these state laws in its 1952 ruling Ray v. Blair. In 2020, the Supreme Court also ruled in Chiafalo v. Washington that states are free to enforce laws that bind electors to voting for the winner of the popular vote in their state.

Faithless elector laws

, 37 states and the District of Columbia have laws that require electors to vote for the candidates for whom they pledged to vote, though in half of these jurisdictions, there is no enforcement mechanism. In 14 states, votes contrary to the pledge are voided and the respective electors are replaced, and in two of these states they may also be fined. Three other states impose a penalty on faithless electors but still count their votes as cast.

Colorado was the first state to void an elector's faithless vote, which occurred during the 2016 election. 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. Until 2008, Minnesota's electors cast secret ballots. Although the final count would reveal the occurrence of faithless votes, it was impossible to determine which electors 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.

Washington became the first state to fine faithless electors after the 2016 election, in the wake of that state having four faithless elector votes. In 2019, the state changed its law for future elections, to void faithless votes and replace the respective electors instead of fining them.

Legal rulings

Ray v. Blair

The constitutionality of state pledge laws was confirmed by the U.S. Supreme Court in 1952 in Ray v. Blair 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:

Chiafalo v. Washington and Colorado Department of State v. Baca

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 four faithless electors from Washington were each fined $1,000 for breaking their pledge. 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 in August 2019 that Colorado's faithless elector law is unconstitutional. 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 U.S. Supreme Court.

The 10th Circuit's decision conflicted with an earlier May 2019 decision by the Washington Supreme Court In re Guerra, in which three electors who had $1,000 fines imposed on them for violating their pledges appealed the fines, which were upheld. In contrast to the Colorado case, the Washington 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, these electors also appealed their case to the U.S. Supreme Court.

On July 6, 2020, the U.S. Supreme Court ruled unanimously in both Chiafalo v. Washington and Colorado Department of State v. Baca that states may enforce laws to punish faithless electors.

History

Over 59 elections, 165 electors have not cast their votes for president or vice president as prescribed by the legislature of the state they represented. 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 the vice presidential running mate were from different parties, they ran on one ticket from the same third party), and the only time the winners were from different tickets.

1804 to 1840

6 – 1808 election: Six electors from New York were pledged to vote for Democratic-Republican James Madison for president and former New York governor George Clinton for vice president. Instead, they voted for Clinton for president, with three voting for Madison for vice president and the other three voting for James Monroe for vice president. Plumer also cast his vice-presidential vote for Richard Rush, not Daniel D. Tompkins as pledged.

7 – 1828 election: Seven of the nine electors from Georgia refused to vote for vice-presidential candidate John C. Calhoun; they instead cast their vice-presidential votes for William Smith.

1864 to 1912

1 – 1864 election: A Nevada elector was snowbound and therefore prevented from casting any ballots.

63 – 1872 election: Horace Greeley, the Liberal Republican/Democrat presidential nominee, died on November 29 shortly before the Electoral College vote in December. Three electors voted for the deceased Greeley as pledged, while the other 63 electors pledged to Greeley voted for other people, with 42 voting for non-candidate Thomas A. Hendricks, 18 voting for Greeley's running mate, Benjamin Gratz Brown, 2 voting for non-candidate Charles J. Jenkins, and 1 voting for non-candidate David Davis. The three posthumous presidential votes cast for Greeley were rejected by Congress.

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 cast their vice-presidential vote for Watson instead of Sewall.

8 – 1912 election: the Republican vice-presidential candidate, James S. Sherman, died six days before the popular election. The Republicans had won only two states, Utah and Vermont, and Nicholas M. Butler was hastily designated to receive the eight electoral votes that were pledged to Sherman. All eight Republican electors accordingly voted for Butler for vice president.

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 vice-presidential vote for Nathan was the first electoral vote cast for a woman in U.S. history.

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 – 1988 election: West Virginia Elector Margarette 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 as a form of protest against the winner-take-all custom of the Electoral College; her presidential vote went to Bentsen and her vice-presidential vote to Dukakis.

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. 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". rather than Kerry, presumably by accident. All of Minnesota's electors cast their vice presidential ballots for John Edwards, including the elector who cast the anomalous presidential vote. 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. 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 William Greene voted for Ron Paul, giving each one presidential vote. Suprun also voted for Carly Fiorina as vice president while Greene voted for Mike Pence as pledged.

In addition, three other electors attempted to vote against their pledges but had their votes invalidated:

In Colorado, Kasich received one vote for president, which was invalidated, and the elector was replaced by one who cast a vote for Hillary Clinton.
In Maine, a Democratic Party elector, David Bright, attempted to vote for Bernie Sanders for president but ultimately cast a vote for Clinton.
A Minnesota Democratic-Farmer-Labor Party elector voted for Bernie Sanders for president and Tulsi Gabbard for vice president, but these votes were invalidated and the elector was replaced by an alternate elector who then cast votes for Clinton and Tim Kaine.

Notes

References

External links

List of Electors Bound by State Law and Pledges, as of November 2000