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.
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. 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 from voting for victorious Democratic vice presidential nominee Richard M. Johnson. 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.
There have been a total of 167 instances of faithlessness as of 2016[update]. Nearly all have voted for third party candidates or non-candidates, as opposed to switching their support to a major opposing candidate. Ultimately, faithless electors have only impacted the outcome of an election once, during the 1796 election where Thomas Pinckney would have become the President and John Adams the Vice President.
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.
Twenty-one states do not have laws compelling their electors to vote for a pledged candidate. Twenty-nine states plus the District of Columbia have laws against faithless electors. Washington became the first state to fine faithless electors after the 2016 election. In lieu of penalizing a faithless elector, other states such as Colorado, Michigan, and Minnesota specify a faithless elector's vote be voided. 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. 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.
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. 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. It said electors are federal officials, the act of voting for president in the electoral college is a federal act 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.
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.
U.S. Supreme CourtEdit
The constitutionality of state pledge laws was confirmed by the 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:
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." 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".
The Supreme Court has never ruled on the constitutionality of state laws punishing or replacing electors for actually casting a faithless vote, or refusing to count said votes.
Over 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). The remaining 106 were changed typically by the elector's personal preference, although there have been rare 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. An exception was the 1836 election, in which all 23 Virginia electors acted together.
The 1796 election is the only instance during which the faithless electors successfully changed the outcome of an election. During this election 18 electors pledged to the Federalist voted as pledged for John Adams, however they refused to vote for Pinckney. As a result Adams attained 71 electoral votes, Jefferson received 68, and Pinckney received 59. Had the 18 electors remained faithful Pinckney would have won the presidency with 77 electoral votes and Adams would have remained vice president.
In the 1836 election faithless electors altered the outcome of the electoral college vote, but failed 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, 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 electorsEdit
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.
7 – 2016 election: In Washington, Democratic party electors gave three presidential votes to Colin Powell and one to Faith Spotted Eagle 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, John Kasich and Ron Paul received one presidential vote each, and one of these electors gave Carly Fiorina a vice-presidential vote.
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. 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 2004Edit
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], 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 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.
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". 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.
1968 to 1996Edit
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 Tonie Nathan. MacBride's VP vote for Nathan was the first electoral vote cast for a woman in U.S. history.
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.
1912 to 1960Edit
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.
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. When the Democratic Party slate won, Parks voted for Thurmond and Fielding L. Wright.
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 Butler for Vice President.
1872 to 1896Edit
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.
1 – 1892 election: In Oregon, the electors were pledged to vote for Benjamin Harrison; three electors voted for Harrison and one faithless elector voted for the third-party Populist candidate, James B. Weaver.
63 – 1872 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. Greeley received three posthumous electoral votes, but these votes were disallowed by Congress.
1812 to 1840Edit
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.
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.
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, John Sergeant. All 30 electors from Pennsylvania refused to support the Democratic vice presidential candidate Martin Van Buren, voting instead for William Wilkins.
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. (Plumer cast his vice presidential vote for Richard Rush, not Daniel D. Tompkins.)
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.
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. 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's opponent, Jefferson, was elected Vice President instead of Adams's running mate Pinckney. This was the only time in U.S. history that the president and vice president have been from different parties prior to 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.
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