Let’s Talk About Faithless Electors


Isn’t more chaos in the presidential election just what you wanted?

Well, thanks to the decision by the 10th Circuit last week (that each state’s presidential electors cannot be required to vote for the state’s popular vote winner), that may be what we just got handed. We use the popular vote for every single political race in the country except for the presidential election. To determine who wins the presidency, we use the Electoral College. So, when we vote for president, really what we’re doing is voting for which set of electors get to cast the final vote for president/vice-president. If the Democrat wins the popular vote in the state, we use the Democratic electors; if the Republican wins, we use the Republican electors, etc.

What’s important to remember here is that the Constitution does not stipulate how electors are chosen, or how they’re supposed to vote, so that’s left up to each individual state. (Here’s the 12th Amendment for your reference.)

29 states (plus DC) have laws stipulating how the electors must act, while 21 states do not. But even in the states without laws, the parties themselves are empowered to exact consequences should a presidential elector not vote the way that they’re expected to, like being expelled from their party position or imposing a fine.

For these reasons, our country has had few faithless electors–electors who vote for a different candidate than the one they are pledged to support.

Of the 167 faithless electors in our history:
– 71 voted for a different candidate because their chosen candidate had died since election day
– 29 swapped their presidential and vice presidential candidates, which are considered “abnormal votes”
– 67 cast a vote for a different candidate due to personal objections

Only 17 of those faithless electoral votes were cast between 1900 and 2016, and 7 of those were in 2016. (Source)

So after a long period of relative calm, and electors acting the way they’re expected to, 2016 ended up being a catalyst to behaving differently, and this new court decision just may have poured gas on this tinderbox. Bloomberg just published an opinion piece about what a terrible decision this new 10th Circuit ruling is:  Appeals Court Opens the Door to Electoral College Chaos  

The kicker is this:

“The fact that a court has said that faithless electors have a right to break faith with the voters is an obvious invitation to future electors to break faith.”

I wish I could recommend an action for each of to take, but right now, I’ve got nothing. This decision is expected to get kicked up to the Supreme Court, but we won’t know that yet for a while. And then we just have to wait.

So in the meantime, let me say this one last thing. I had many respond to my tweet about this issue last week with “Well then, if they can just vote the way they want to, why should we even bother voting at all?” I can’t tell you how much that attitude bothers me. Are you a voter or not? We vote because that’s what voters do. We vote in every election, and I mean every election (primaries, general, special, off-cycle, even one-off elections on random months to vote for a county commissioner.)

We vote because what recourse do we have if the electors then vote exactly the way they’re supposed to in 2020? Cry and say “but I thought our vote didn’t matter anymore?” No. We cannot ever allow anything to dissuade us from casting our votes. Stand up and speak your mind: your vote is your voice and we need everyone to speak up. No matter what.

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7 replies

  1. Hello TOKYOSAND. Only the minority that can not win wants minority rule. I would prefer we do away with the electoral college. We really should use the popular vote. To prevent the vote suppression actions of some states we need federal laws mandating voting places in acceptable areas for all voters, early voting, mail in vote for those who wish it, better regulation on known voting problems / issues, and a complete overhaul of the way the voter rolls are managed. I live in Florida. This state is famous for trying to suppress the votes of POC and they are really good at it. Where I live the area is mostly white. We have early voting in a large community center with lots of parking, many machines and staff, no lines, and assistance for the disabled. Not so in areas mostly POC, it is the reverse. I look nothing like my drivers licence picture, in that I had really long hair, was much heavier, and had no facial hair. Now my hair is short, I am a lot thinner, and I have a big beard and mustache. They let me vote anyway. If I was a POC I would be rejected. This is not acceptable in a democracy and a leading progressive nation. Hugs

    • I agree with you, Scottie. I’d also prefer that we move our presidential elections to the popular vote, and that we get rid of the many vote suppression tactics that are wielded throughout the country. (It’s why I write about those topics frequently.) That said, for now we are stuck with the Electoral College so have to align our tactics for winning back the White House to that reality.

  2. Yes, this is quite the quandary is it not? And now we have word that one of the FEC commissioners is resigning, which will have the effect of no quorum…which means they basically can’t do a damn thing. Can we trust Trump and McConnell to quickly appoint a replacement? Ughhhh…of course not. I’m starting to really dread 2020. Why do I feel that the fix is already in?

    • The FEC news is alarming, yes. But they’ve been toothless for a while. As for a “fix,” I firmly believe that the GOP will do everything humanly possible to weaken our elections, but at the same time believe that overwhelmingly voting on Election Day will win the day.

      • Oh absolutely. An overwhelming rebuke to Trump is the only answer. If we show up in droves…he loses….big.

  3. Take a look at the National Popular Vote Interstate Compact website. You will see that Article 5 gives legislatures the right to name the electors and, as such, if each party carefully vets their electors, and they agree to vote for the winner of the National popular vote, then they will be in compliance with the court’s decision. NPVIC is the way to go and we are getting close to having 270 electoral votes.

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