Faithless Electors: What Each Side is Saying

Ty Aravazhi Contributor
Faithless Electors: What Each Side is Saying
Read Time: approx. 2:01

Cover: Public Domain

Faithless Electors, What Each Side is Saying: Since the 2016 Presidential Election, the obscure, little known concept of “faithless electors” within the Electoral College has sparked waves of debate. As outlines, “a faithless elector is an individual in the Electoral College who decides not to vote for their own registered party’s candidate. Faithless electors may act alone, or join with other electors with each committing to casting their votes for a particular candidate outside their party.” According to Fair Vote, “Faithless electors have never changed the outcome of a presidential election. To date, only one elector has cast a vote for the opposite party’s nominee instead of his own in a close contest. In the 1796 election – the very first contested presidential election – Samuel Miles, a Federalist elector from Pennsylvania, voted for Democratic-Republican candidate Thomas Jefferson instead of Federalist candidate John Adams.” If you’re a history nerd like us then maybe that last factoid is interesting. If not, here’s how it connects to modern times. There has been one faithless elector in each of the following elections: 1948, 1956, 1960, 1968, 1972, 1976, and 1988. A blank ballot was cast in 2000. In 2016, seven electors broke with their state on the presidential ballot and six did so on the vice presidential ballot. On Wednesday, the Supreme Court heard two cases relating to state efforts to ensure that electors vote for their pledged candidates. In summary, POLITICO notes that “the justices appear unlikely to grant legal protection to so-called faithless presidential electors, fearing that it could invite chaos in this fall’s presidential contest or future ones by empowering the obscure officials to ignore state-imposed limits on their critical votes.” Here were the arguments from each side:

Those in favor of unbinding electors from their state’s results argue that the Constitution gives them the right to vote as they choose. Michael Baca, Polly Baca, and Robert W. Nemanich were presidential electors in the 2016 election. They did not vote for their pledged candidate (Hillary Clinton), and they are at the center of the recent Supreme Court case. In a Washington Post opinion piece, they write: “We are here to say conclusively: We are not robots. We are human beings. We should be allowed the ‘vote’ the Framers of our Constitution gave us, one based on our honor and discretion.” They are currently challenging their respective states’ punitive actions against them on the basis that the 20th Amendment of the Constitution allows them the discretion to make their own choice. They believe their federal rights, which are guaranteed by the Constitution, are being stifled by the laws of their states, which mandate them to vote for the pledged candidate. By the way, Micheal Baca of Colorado tried to cast his presidential ballot for Ohio Gov. John Kasich, a Republican even though Democrat Hillary Clinton won the state’s popular vote over Donald Trump.

Critics of “faithless electors” believe the Constitution leaves the selection and regulation of electors to the state. Unlike those in favor of electors being allowed to vote freely, opponents do not believe the Constitution inherently provides presidential electors with the ability to choose whomever they please. In their view, it is not unconstitutional for a state to compel an electors’ pledge. “In the absence of a constitutional restriction on states’ authority, federalism ought to carry the day,” The Editorial Board at the Wall Street Journal argues. They continue, “If there had been a consensus around Electoral College independence, it would have been protected in the Constitution.” Critics also emphasize that in their creation of the Electoral College, the framers of the Constitution did not consider political parties as they presently exist. In addition, some detractors express a fear of “rogue electors” attempting to undermine and subvert the results of an election.

Flag This: The very existence of the Electoral College has often been a contentious subject of debate. Proponents justify it as a necessary way to balance the scales in favor of smaller states and voters living outside of large cities. Critics decry the institution as an outdated relic of slavery, which doesn’t proportionately reflect the will of people. In the increasingly unlikely event that the Supreme Court were to unbind electors from having to vote for the candidate they were pledged to, it could create chaos in the presidential electoral process. Specifically, a close election could result in a stalemate, which would force a “Contingent Election.” This rare process has only occurred three times in the nation’s history, and it shifts the power to elect the President into the hands of the House of Representatives, and the Senate would elect the Vice President. For that reason, some have advocated the dissolution of the electoral college, in favor of placing the power to elect the president directly in the hands of the American people. The electoral college debate is for another time, but for now a Supreme Court’s decision on faithless electors is likely to be announced at the end of June.