Faithless Electors

Article II, Section 1 of the US Constitution says that each state shall appoint a number of electors equal to its number of Congressional representatives, only stipulating that electors cannot hold a federally elected or appointed position.

Each state has a two-part process to appoint electors. First, the state Republican and Democratic parties choose a slate of electors to represent the state if their party’s candidate wins the statewide popular vote. If any third-party candidates are on the ballot in a state, the corresponding party also nominates a slate of electors. In 2020, for example, the Libertarian candidate was on the ballot in all 50 states and DC, so that party also submitted potential electors in each state and DC.

Second, voters in each state participate in the general election held on the Tuesday following the first Monday in November of a presidential election year. In 2020, that was November 3. In 48 states and Washington, DC, the slate of electors from the political party whose candidate wins the general election statewide popular vote are appointed. The remaining two states, Maine and Nebraska, give two electoral votes to the statewide winner and one to the winner of each congressional district.

 

I. What Is a Faithless Elector?

Electors cast separate ballots for president and vice president. Since electors are nominated by political parties, they are expected to cast their ballots for that party’s chosen presidential and vice presidential candidates. Electors are not, however, bound by the Constitution or federal law to vote a certain way.

Those who do not vote as pledged are known as “faithless electors.”

Faithless electors have never changed the outcome of a presidential election, and more than 99.99% of electors have cast their electoral votes as pledged over the history of the country. In fact, an estimated 23,955 of 24,045 presidential electoral votes were cast as pledged.

 

II. State Laws on Faithless Electors

Many states have implemented policies to bind nominated electors to their pledges. In 33 states and Washington, DC, the electors are bound by law or oath to vote for their party’s candidate. The laws in those states require electors to vote for the party that nominated them or have them sign a pledge or oath to do so. Fifteen states have mechanisms by which they can remove, penalize, or cancel the votes of electors who do not vote as pledged, while the other states do not have pledge enforcement mechanisms in place.

 

III. Supreme Court Rulings on Faithless Electors

Three Supreme Court rulings have upheld the rights of states to require electors to vote as pledged.

1. In Ray v. Blair, 343 US 214 (1952), the Court ruled per curiam that states could allow a state political party to require pledges from electors to vote for the party’s nominee because “It is an exercise of the state’s right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose.”

The issue of what mechanisms could be used to enforce an elector pledge was not addressed until 2020.

2. In Chiafalo v. Washington, 591 US ____ (2020), the Court issued a 9–0 ruling that upheld a $1,000 fine imposed by Washington state on three electors who did not vote for Hillary Clinton in the 2016 presidential election as they had pledged to do. The ruling stated, “A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.”

The electors’ deviant votes were counted toward the electoral vote tally, although they did have to pay the $1,000 fine. Washington state passed a law in 2019 allowing the state to replace faithless electors with an alternate in lieu of issuing a fine.

3. In Colorado Department of State v. Baca, 591 US ____ (2020), a Democratic elector voted for John Kasich instead of Hillary Clinton, despite a Colorado law requiring electors to vote for the candidate who won the statewide popular vote. The Court issued a per curiam ruling that allowed Colorado to replace the faithless elector.

 

IV. Challenges in Congress

The Electoral Count Act passed by Congress in 1887 let the states settle Electoral College issues such as appointing electors and punishing faithless electors. However, the Act built in a mechanism for objecting once the process of counting electoral votes begins in Congress. An objection to the counting of electoral votes from a state or DC must be submitted in writing and signed by a minimum of one senator and one representative. Once that occurs, the electoral vote counting is paused while the Senate and House separately engage in debate. Both chambers must uphold the objection with a simple majority vote to void the electoral votes in question; otherwise, the objection fails and the votes are counted.

Since 1887, there has been only one formal objection in Congress to a vote cast by a faithless elector. In 1968, Alabama Governor George Wallace ran as an Independent. One Republican party elector in North Carolina voted for Wallace instead of Nixon, who had won the state. Representative James O’Hara (D-MI) registered the first ever formal objection during the counting of the electoral votes with the goal of deterring future faithless electors, and was joined by Senator Edmund Muskie (D-ME). Congress rejected the objection and counted the vote of the faithless elector toward the final tally.

Senators only signed on to formal objections to electoral votes in two other years, though neither related to faithless electors. In 2005, one Democratic representative and one Democratic senator challenged Ohio’s electoral votes on grounds of alleged voting irregularities. In 2021, eight Republican senators and 139 Republican representatives challenged votes in Arizona and Pennsylvania, alleging concerns about the states’ election processes.

 

V. Number of Faithless Electors in History

An elector would be considered “faithless” if they did not vote as pledged for president or vice president. Altogether, 90 electors have deviated from their expected presidential vote, and 75 electors deviated from their expected vice presidential vote, for a total of 165 faithless electors, according to the electoral reform nonprofit Fair Vote. None of those have impacted the outcome of an election.

There were no faithless electors in the 2020 election. Ten electors attempted to vote against their pledges in 2016; three were replaced but seven faithless elector votes were counted, the first time since 1872 with more than one faithless elector for the presidential vote.

Sixty-three of the 90 faithless presidential votes (70%) in US history occurred in 1872 when Democratic candidate Horace Greeley died after the general election but before the electoral vote. Greeley had earned 66 electoral votes; after his death, three pledged electors still voted for him, although Congress rejected those three electoral votes.

Below is a chart showing the 90 faithless electors in presidential votes over the history of the 59 US presidential elections.

Election
Year
# Faithless Elector Votes Reason Party Pledged Electoral Vote Results Total EV
2016 10 Three Democrats voted for Bernie Sanders (HI, ME, MN), one for John Kasich (CO), three for Colin Powell (all in WA), and one for oil pipeline protestor Faith Spotted Eagle (WA). Two Republicans in Texas voted for John Kasich and Ron Paul. The faithless electors in Colorado and Minnesota were replaced, and the elector in Maine switched his vote back to Clinton, so only seven faithless elector votes were recorded in the electoral vote count. 8 Democrats + 2 Republicans Trump 304, Clinton 227, Other 7 538
2004 1 An elector in Minnesota cast a vote for Kerry’s running mate, John Edwards, in what is believed to have been a mistake. Democratic Bush 286, Kerry 251, Edwards 1 538
2000 1 An elector in DC did not cast her vote to protest the District’s lack of voting representation in Congress. Democratic Bush 271, Gore 266 538
1988 1 An elector in West Virginia swapped her votes for president and vice president to draw attention to the fact that electors did not have to vote as pledged. Democratic Bush 426, Dukakis 111, Bentsen 1 538
1976 1 An elector in Washington voted for Reagan, who had lost in the primary. Republican Carter 297, Ford 240, Reagan 1 538
1972 1 An elector in Virginia voted for the Libertarian candidate instead of Nixon. Republican Nixon 520, McGovern 17, Hospers 1 538
1968 1 An elector in North Carolina voted for George Wallace, an Independent Party candidate, to express displeasure with Nixon. Wallace had won the elector’s district. Republican Nixon 301, Humphrey 191, Wallace 46 538
1960 1 An elector in Oklahoma voted for Harry F. Byrd instead of Nixon. Republican Kennedy 303, Nixon 219, Byrd 15 537
1956 1 An elector in Alabama voted for Walter Burgwyn Jones instead of Stevenson. Democratic Eisenhower 457, Stevenson 73, Jones 1 531
1948 1 An elector in Tennessee voted for Strom Thurmond, the candidate of the Democratic party off-shoot, the States Rights party. Thurmond won the electoral votes in Louisiana, Alabama, Mississippi, and South Carolina. Democratic Truman 303, Dewey 189, Thurmond 39 531
1872 63 Horace Greeley won a number of states equal to 66 electoral votes in the general election, but died before the Electoral College met. 63 of Greeley’s electors cast votes for other candidates; three voted for Greeley despite his death but Congress did not count them. Democratic Grant 286, Other 63, Greeley 3 (Congress discarded votes for Greeley) 352
1820 1 An elector pledged to Monroe voted for John Quincy Adams, who was not a candidate, because he did not want there to be a unanimous vote. Democratic-Republican Monroe 231, Adams 1 (3 electors died before voting so only 232 votes were cast) 235
1808 6 Six electors did not support Madison as their party’s candidate and instead voted for his VP, George Clinton. Democratic-Republican Madison 122, Pickney 47, Clinton 6 175
1796 1 The first faithless elector in American history was pledged to the Federalist candidate John Adams, but instead voted for his opponent, Democratic-Republican Thomas Jefferson. Federalist Adams 71, Jefferson 68 (there is no explanation for why 139 electoral votes were cast out of a total of 138) 138
TOTAL 90

 

Sources:

  1. Chiafalo v. Washington, 19-465, courtlistener.com, July 6, 2020
  2. Colorado Dept. of State v. Baca, 19-518, courtlistener.com, July 6, 2020
  3. Congressional Research Service, “Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress,” fas.org, Dec. 8, 2020
  4. Congressional Research Service, “‘Faithless Elector’ Challenge Goes to Supreme Court,” crsreports.congress.gov, May 12, 2020
  5. Fair Vote, “Faithless Elector State Laws,” FairVote.org, July 7, 2020
  6. Fair Vote, “Faithless Electors,” fairvote.org, July 6, 2020
  7. David Gutman, “U.S. Supreme Court rules against Washington’s ‘faithless electors,’ says states can require electors to back vote winners,” seattletimes.com, July 6, 2020
  8. Bob Johnston, LP Presidential Nominee On The Ballot in All 50 States Plus DC, lp.org, Sep. 16, 2020
  9. Harry Stevens, Daniela Santamariña, Kate Rabinowitz, Kevin Uhrmacher, and John Muyskens, “How members of Congress voted on counting the electoral college vote,” washingtonpost.com, Jan. 7, 2021
  10. House of Representatives, “Congress and the Case of the Faithless Elector,” history.house.gov, Nov. 17, 2020
  11. National Archives and Records Administration, “About the electors,” archives.gov (accessed Dec. 22, 2020)
  12. Ray v. Blair, 343 U.S. 214, courtlistener.com, Apr. 15, 1952