9.10 Myths about Faithless Electors

The myth about faithless electors is yet another example of a potential problem that the National Popular Vote plan handles in a manner that is equal to, and arguably superior to, the current system.

The Founding Fathers envisioned that the presidential electors would be outstanding citizens who would meet and debate and exercise independent judgment in choosing the best person to become President. However, that expectation was dashed with the emergence of political parties in the nation’s first competitive presidential election in 1796.

Since 1796, presidential electors have been committed party activists who are nominated by their political party to cast their vote in the Electoral College for their party’s nominee. That is, presidential electors have simply been willing “rubber-stamps” for their party’s nominee for President.

Faithless presidential electors are not a practical problem in the first place. Of the 22,991 electoral votes cast for President in the nation’s 57 presidential elections between 1789 and 2012, only 17 were cast in a deviant way.[266] Moreover, among these 17 cases, the unexpected vote of Samuel Miles for Thomas Jefferson in 1796 was the only instance of a true faithless elector (where the elector might have thought, at the time he voted, that his vote might affect the national outcome).

Fifteen of the 17 cases were post-election grand-standing votes cast by publicity-seeking electors who knew, at the time they voted, that their vote would not affect the outcome in the Electoral College.

One electoral vote was accidentally and unintentionally cast by an unidentified Democratic presidential elector in Minnesota who absentmindedly voted for his party’s vice-presidential candidate for both President and Vice President.[267]

Nonetheless, the possibility of faithless electors exists under both the current system and the National Popular Vote plan.

For example, in September 2012, three Republican electors (who had favored Ron Paul during the nomination process) publicly raised doubt as to their loyalty to Mitt Romney, the eventual Republican presidential nominee.[268] Defection by multiple presidential electors could potentially throw a close presidential election into the U.S. House of Representatives.[269]

Second, if anyone perceives faithless presidential electors to be a real problem, the states already have ample constitutional authority to remedy the situation by state law.

In most states, each political party nominates candidates for the position of presidential elector (typically at a combination of party conventions at the congressional district level and state level).

About half of the states currently have laws involving pledges, penalties, or other procedures to ensure that presidential electors vote for their party’s nominees.

In upholding the constitutionality of a pledge guaranteeing faithful voting by presidential electors, U.S. Supreme Court Justice Robert H. Jackson wrote in the 1952 case of Ray v. Blair:

“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.…

“This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially become voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

‘They always voted at their party’s call

‘And never thought of thinking for themselves at all’”[270] [Emphasis added]

Existing Pennsylvania law is noteworthy in that it empowers each party’s presidential candidate to nominate all elector candidates directly. The presidential nominee is, after all, the person whose name actually appears on the ballot on Election Day and who has the greatest immediate interest in faithful voting by presidential electors.

Existing North Carolina law declares vacant the position of any contrary-voting elector, voids that elector’s vote, and empowers the state’s remaining electors to replace the contrary-voting elector immediately with an elector loyal to the party’s nominee.

At its 119^th annual meeting in 2010, the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws) approved a “Uniform Faithful Presidential Electors Act” and submitted this model legislation to the state legislatures for their consideration. The Conference, formed in 1892, is a non-governmental body that has produced more than 200 recommended uniform state laws. The Conference is most widely known for its work on the Uniform Commercial Code.

The Uniform Faithful Presidential Electors Act has many of the features of North Carolina’s existing law. The proposed uniform law calls for the election of both electors and alternate electors. The Act has a state-administered pledge of faithfulness. Any attempt by a presidential elector to cast a vote in violation of that pledge effectively constitutes resignation from the office of elector. The Act provides a mechanism for immediately filling a vacancy created for that reason (or any other reason). The National Popular Vote organization has endorsed this proposed uniform law.

Third, in case anyone views faithless presidential electors to be a real problem, the National Popular Vote plan is actually superior to the current system in ensuring that a wayward elector would be unlikely to impact the ultimate choice of the President. Under the National Popular Vote compact, the national popular vote winner would generally receive an exaggerated margin (roughly 75%) of the votes in the Electoral College in any given presidential election. The reason is that the National Popular Vote compact guarantees that the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would receive at least 270 (of the 538) electoral votes from the states belonging to the compact. Then, beyond that guaranteed bloc of at least 270 electoral votes, the national popular vote winner would receive additional electoral votes from whichever non-compacting states he or she happened to carry (presumably under existing winner-take-all statutes in those states). If the non-compacting states divided approximately equally between the candidates, the nationwide winning candidate would generally receive an exaggerated margin (roughly 75%) of the votes in the Electoral College (that is, about 404 out of 538 electoral votes). This cushion would make it highly unlikely that faithless electors could affect the outcome of a presidential election (where 270 electoral votes are required to win the Presidency).

For additional information about faithless electors, see section 2.12.

Footnotes

No coercion is required to force presidential electors to vote as intended under either the current system or the National Popular Vote system.

Under both systems, each political party nominates opinionated party activists for the ceremonial position of presidential elector under existing state laws. Each party’s nominees for the position of presidential elector are selected precisely because they are passionate supporters of their party’s candidate and because they can be relied upon to act as willing “rubber-stamps” for their party’s nominee.

When voters go to the polls on Election Day in November, they are, in reality, choosing amongst competing slates of presidential electors associated with the Democratic Party, the Republican Party, or some other party. Under the winner-take-all system (currently used in 48 of the 50 states and the District of Columbia), the entire slate of elector candidates associated with the presidential candidate receiving the most popular votes within each separate state is elected as the state’s presidential electors.[271]

Under the National Popular Vote compact, the state’s presidential electors would be the elector candidates associated with the presidential candidate who won the most popular votes in all 50 states and the District of Columbia. This bloc of 270 (or more) presidential electors would reflect the will of the voters nationwide. All of these 270 or more presidential electors would be loyal and avid supporters of the national popular vote winner. These presidential electors would come from the political party that won the election nationally. Thus, no one in this bloc of 270 (or more) presidential electors would be asked to vote contrary to his or her own political inclinations or conscience. Instead, these electors would vote for their own strongly held personal choice, namely the nominee of their own political party.

Under the National Popular Vote plan, these 270 (or more) presidential electors would operate as willing “rubber-stamps” for the nationwide choice of the voters, just as presidential electors currently act as willing “rubber-stamps” for the statewide choice of the voters (or district-wide choice, in the cases of Maine and Nebraska).

Footnotes

Some have suggested that, under the National Popular Vote compact, presidential electors might, after the people vote in November, succumb to outside pressure and abandon the national popular vote in favor of the winner of the popular vote in their state.

This hypothetical scenario is based on the following incorrect assumptions:

• There is any substantial pool of people who would support the notion of changing the rules after the public has voted on Election Day.
• The public favors the current state-by-state winner-take-all approach for electing the President, and hence there would be a vast pool of people to apply such pressure on presidential electors.
• The supporters of the presidential candidate who just won the national popular vote, under laws that were in place on Election Day, would care about—much less actually succumb to—pressure from people representing the losing party.

The reality is that there would be no substantial pressure in the first place. The public simply does not favor the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most popular votes in each separate state (the winner-take-all-rule). In polls since 1944, at least 70% (usually more) of the American people have said that they favored the idea that the presidential candidate receiving the most votes throughout the United States should win the Presidency. A mere 20% of the public supports the current state-by-state winner-take-all system (with 10% undecided). Far from being attached to the state-by-state winner-take-all system of awarding electoral votes, the public strongly opposes it.

The environment in which this hypothetical scenario would arise has the following five elements:

1. About 70% of the voters of any given state believe that the presidential candidate receiving the most votes in all 50 states and the District of Columbia should win the Presidency;
2. The state legislature and Governor of the state have responded to the wishes of its own voters and enacted the National Popular Vote law in their state;
3. States possessing a majority of the electoral votes (essentially more than half the population of the country) have similarly enacted the National Popular Vote law, and the law has taken effect nationally;
4. A nationwide presidential campaign has been conducted, over a period of many months, with the candidates, the media, and everyone else in the United States knowing that the National Popular Vote plan is the law that will govern the presidential election; and
5. On Election Day in November, one presidential candidate emerged with the most popular votes in all 50 states and the District of Columbia.

The hypothetical scenario then conjectures that when the time comes for the Electoral College to meet in mid-December, the 270 (or more) presidential electors (who are avid supporters of their own party’s presidential candidate who just won the national popular vote) would respond to pressure from supporters of the political party that just lost the election.

In fact, there would be little inclination for party activists to vote against their own strongly held personal preferences, against their own party’s presidential nominee, against their own state’s law, and against the desires of an overwhelming majority of their state’s voters (who favor a national popular vote for President).

The country has actual experience that relates to the hypothesized scenario. In 2000, Al Gore won the national popular vote by a margin of over 537,000 votes. However, under the laws in place at the time, there were 271 Republican presidential electors (just one more than the 270 needed to elect a President) who were nominated for that position by their party on the presumption that they would vote for George W. Bush. About 70% of the American people believed (then and now) that the Presidency should go to the candidate who receives the most popular votes in all 50 states and the District of Columbia. Nevertheless, none of the 271 Republican presidential electors succumbed to public pressure and voted in favor of the winner of the national popular vote.