Faithless Electors

I’m going to start a series of posts on constitutional conventions (i.e., customs) in the United States.  This topic is part of the article that I’m working on now, and is related to the Noel Canning case that the Supreme Court will hear this month on the Recess Appointment Clause.  (Up until recently, norms have governed recess appointments.)

Let’s start with the following question:  Under what circumstances, if any, would a presidential elector be justified in not voting for the candidate who won his or her state?  There is no doubt that the original understanding was that electors were free to vote their conscience.  There is also no doubt that there is a longstanding practice that electors will do no such thing.  Every so often an elector will vote for someone else or not vote, but that has never changed the outcome.

Two things to note at the outset. First, electors generally do not vote by secret ballot.  If they did, that would make it much easier for them to cross their party.  Second, some states have laws that would penalize electors who are faithless, but the constitutionality of these statutes is doubtful–the Supreme Court declined to address that issue in a 1952 case.

If an elector (or group of electors) switched their votes to change the result (or abstained to throw the decision to the House of Representatives), would that be legal?  Almost certainly yes.  Would that be legitimate?  That’s a much harder question.  One can think of a few conditions that might justify such an action.

1.  The popular vote winner did not win the electoral vote.

Despite the precedents of 2000, 1888, 1876, and 1824, one could argue that electors would be right to vote for the person who won the popular vote.

2.  Some derogatory information comes out about the winner between Election Day and the day the electors vote.

“President-elect Smith took bribes in a prior job.”  Once sworn in, President Smith could be impeached and removed for this sort of conduct, but that would take a lot of time and energy.  Would the electors be justified in short-circuiting this process?  Could be. Should they then vote for Smith’s Vice-President or the person Smith defeated (on the theory that the people would never have voted for Smith if they knew he was a crook)?

3.  Some serious health issue cripples the winner.

“President-elect Smith has a stroke.”  The Twenty Amendment specifies what happens when the President-elect dies (though it’s not clear whether “President-elect” means the winner on Election Day or the person elected formally by the Electoral College), but says nothing about a disability.  A disabled President Smith can be temporarily removed under the Twenty-Fifth Amendment.  Would electors, though, be right to vote for the Vice-President elect and avoid that issue?

Do other scenarios come to mind?





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9 Responses

  1. Thanks Gerard Magliocca for this knowledgeable post. Keep sharing with us and informing us.

  2. I am following this blog for quite sometime and it always added knowledge.

  3. brad says:

    I don’t have any answers, but I do have another question:

    Does the putative President-elect / putative Vice-President-elect / formal party apparatus of the putative winner have any say in the matter?

    To give just one example, suppose the putative President-elect’s wife died before the Electoral College met and she was so devastated that she no longer wished to be President. As with disability AFAIK there’s no mechanism dealing with resignation before being inauguration.

  4. Joe says:

    1. What electors would vote here to match the electoral and popular vote? Some of those years there was real evidence that the STATE popular vote was illegitimate in some fashion.

    If the OFFICIAL popular vote in the state is “wrong” (e.g., clear evidence of political electoral officials cooking the numbers somehow), the elector might arguably have a stronger case that a few electors in Texas, e.g., in 2000 voting to ‘even things out’ so Gore can win. Of course, since the whole system doesn’t rely merely on popular vote, the legitimacy of this is debatable.

    2. It is somewhat debatable if pre-office conduct can (or would) lead to impeachment. A recent judicial impeachment and removal raised this issue but I don’t think it relied on conduct done merely before he was confirmed. In a serious case, this sounds possible. OTOH, electors be the most suitable people over Congress to judge them? Electors whose judgment voters don’t balance in any way & don’t expect to really be a factor at all?

    3. “President elect” must be the electoral vote winner — Election Day involves choosing electors, who then vote, however token that might be. Again, I don’t think electors would be the best ones to deal with that.

    The one scenario that doesn’t seem to be covered is the death of someone before the electoral vote. This happened in 1872, but to the losing candidate. If it was the winning candidate, voting for the dead person seems wrong. Here, the best policy would seem to vote for no one and let the House decide. Am. 20, sec. 4 allows for Congress to pass a law to deal with the death of a candidate.

    Even as to #1, I’m wary of electors instead of Congress dealing with dubious state electoral counts. But, an elector might feel obligated not to submit a vote for a “fraudulent” winner there.

  5. mls says:

    It seems clear, however, that the Porteous conviction stands, at a minimum, for the proposition that misconduct during the confirmation process, such as lying to or deceiving the Senate, may constitute a “high crime or misdemeanor.” Moreover, it appears likely that those Senators who voted to convict on Article II believed that Porteous’s pre-federal conduct itself constituted, at least under the circumstances of that case, a high crime or misdemeanor.

  6. Shag from Brookline says:

    Joe’s point 3 reference to 1872 reminded me that I recently found in my library (I don’t know how it got there) Roy Morris, Jr.’s “Fraud of the Century – Rutherford B. Hayes Samuel Tilden and the Stolen Election of 1876” (2003). I haven’t read it because of vision problems. Perhaps Joe has. If so, Joe, is it a worthwhile read?

  7. Joe says:

    There have been a few books about that election, including one written by William Rehnquist (I read other books by him; might have read that one too). I don’t recall reading that one. I see there was a Book Notes (with Brian Lamb) segment on it. You can watch and read (print out) a transcript:

    See also here:

  8. Joe says:

    I appreciate the clarification as to Judge Porteous.

    “The House Impeachment Managers, on the other hand, argued that “conduct which occurs prior to assuming federal office, particularly when the officeholder concealed such conduct during the confirmation process, is an appropriate basis for impeachment and removal from office.”

    [My computer has problems with the large file attached so did not read it]

    This does clarify some though would not want to apply it directly to, e.g., a presidential candidate who withheld something etc., something that happened over the years, but does not appear to be generally deemed impeachment worthy.,_Jr.

    Art. 1 speaks of “while a Federal judge” … Art. II & III provides conduct that overlaps his service (continuing “while”) Art. IV involves his confirmation hearings and he was convicted on that ground too. I think an argument can be made that the confirmation hearing is special in that respect as compared to a electoral contest.

    It’s an interesting matter to consider overall.

  9. Shag from Brookline says:

    Joe, thanks. That first link looks good.”

    How might the “New Originalism” handle Gerard’s scenarios? I’m in the process of reading Jack Balkin’s 2013 Fordham LR article on the use of history with the “New Originalism.” Currently on legal blogs originalism is hot and I do’t see very much agreement even among originalists (assuming Jack is really one). Of course there’s always “law Office” history.