November 30, 2020
Faithless Electors is part of ESPC’s How Does the Process Work? Series
You’ve read about the process to nominator the Electors who select the President. You’ve read about all the key dates in the Electoral College in 2020. Now we want you to know about “faithless electors.” What are they? Or, who are they?
According to the National Conference of State Legislatures:
There is no federal law or constitutional provision requiring electors to vote for the party that nominated them, and over the years a number of electors have voted against the instructions of the voters. Electors generally are selected by the political party for their party loyalty, and many are party leaders, and thus not likely to vote other than for their party’s candidate.
Some states have passed laws that require their electors to vote as pledged. These laws may either impose a fine on an elector who fails to vote according to the statewide or district popular vote, or may disqualify an elector who violates his or her pledge and provide a replacement elector.
In July 2020, the Supreme Court of the United States ruled in Chaifalo v. Washington that it is constitutional for states to enact this type of law. The states with laws that attempt to bind the votes of presidential electors are below:
|Alabama (Ala. Code §17-14-31)||Mississippi (Miss. Code Ann. §208.46)|
|Alaska (Alaska Stat. §15.30.090)||Montana (Mont. Code Ann. §13-25-307)|
|Arizona (Ariz. Rev. Stat. §16-212)||Nebraska (Neb. Rev. Stat. §32-714)|
|California (Cal. Elec. Code §6906)||Nevada (Nev. Rev. Stat. §298.075)|
|Colorado (Colo. Rev. Stat. §1-4-304)||New Mexico (N.M. Stat. Ann. §1-15-9)|
|Connecticut (Conn. Gen. Stat. §9-176)||North Carolina (N.C. Gen. Stat. §163-212)|
|Delaware (Del. Code Ann. tit. 15, §4303(b))||Oklahoma (Okla. Stat. tit.26 §10-102)|
|District of Columbia (D.C. Code §1-1001.08)||Ohio (Ohio Rev. Code §3505.40)|
|Florida (Fla. Stat. §103.021)||Oregon (Or. Rev. Stat. §248.355)|
|Hawaii (Haw. Rev. Stat. §14-28)||South Carolina (S.C. Code Ann. §7-19-80)|
|Indiana (Ind. Code §3-10-4-1.7)||Tennessee (Tenn. Code Ann. §2-15-104)|
|Iowa (Iowa Code §54.8)|
|Maine (Me. Stat. tit.21-A, §805)||Vermont (Vt. Stat. Ann. §2732)|
|Maryland (Md. Code Ann. §8-505)||Virginia (Va. Code Ann. §24.2-203)|
|Massachusetts (Mass Gen. Laws ch.53, §8)||Washington (Wash. Rev. Code §29A.56.090)|
|Michigan (Mich. Comp. Laws §168.47)||Wisconsin (Wis. Stat. §7.75)|
|Minnesota (Minn. Stat. §208.46)||Wyoming (Wyo. Stat. Ann. §22-19-108)|
Most of the laws cited above require electors to vote for the candidate of the party that nominated the elector, or require the elector to sign a pledge to do so. Some go further: Oklahoma imposes a civil penalty of $1,000; in North Carolina, the fine is $500, the faithless elector is deemed to have resigned, and a replacement is appointed. In South Carolina, an elector who violates his or her pledge is subject to criminal penalties, and in New Mexico a violation is a fourth degree felony. In Michigan, a candidate who fails to vote as required is considered to have resigned, and a replacement is appointed.
Which probably leaves you wondering, have there ever been any faithless electors?
The answer is yes. Here are the details:
In 2016, there were seven faithless electors, the most since 1972—three Democratic electors from Washington state cast their votes for Republican Colin Powell, instead of Democrat Hillary Clinton; one Democratic elector from Washington state cast his vote for Faith Spotted Eagle, a woman who is a member of the Yankton Sioux Nation; one Democratic elector from Hawaii cast his vote for Bernie Sanders, instead of Hillary Clinton; one Republican elector from Texas cast his vote for John Kasich, instead of Donald Trump; and one Republican elector from Texas cast his vote for Libertarian Ron Paul. The last time an elector crossed party lines was in 1972, when an elector nominated by the Republican Party cast his ballot for the Libertarian ticket.
Want to know about the nomination of electors and the awarding of electoral college votes? Click here!
Curious about the canvassing and ballot certification process that happens post-election day? Click here!