In United States presidential elections, a faithless elector is a member of the United States Electoral College who does not vote for the presidential or vice-presidential candidate for whom they had pledged to vote. That is, they lack faith in the pledge and vote for another candidate, or fail to vote, or choose not to vote. A pledged elector can become a faithless elector only by breaking their pledge; unpledged electors have no pledge to break.
Electors are typically chosen and nominated by a political party or the party's presidential nominee: they are usually party members with a reputation for high loyalty to the party and its chosen candidate. Thus, a faithless elector runs the risk of party censure and political retaliation from their party, as well as potential legal penalties in some states. Candidates for elector are nominated by state political parties in the months prior to Election Day.
In some states, the electors are nominated in primaries, the same way other candidates are nominated. In other states, such as Oklahoma, Virginia, and North Carolina, electors are nominated in party conventions. In Pennsylvania, the campaign committee of each candidate names their candidates for elector (an attempt to discourage faithless electors). The parties have generally been successful in keeping their electors faithful, leaving out the cases in which a candidate died before the elector was able to cast a vote.
During the 1836 election, Virginia's entire 23-man electoral delegation faithlessly abstained from voting for victorious Democratic vice presidential nominee Richard M. Johnson due to Johnson's openly admitted, publicized, long-term interracial relationship with his slave, octoroon Julia Chinn. The loss of Virginia's support caused Johnson to fall one electoral vote short of a majority, causing the Vice Presidential election to be thrown into the U.S. Senate for the only time in American history. However, Virginia's electors voted for Democratic presidential nominee Martin Van Buren as pledged, meaning the presidential election itself was not in dispute. The U.S. Senate ultimately elected Johnson anyway after a party-line vote.
Despite 157 instances of faithlessness as of 2015, faithless electors have not yet affected the results or ultimate outcome of any other election for President and Vice President of the United States.
The Electoral College mechanism and the peculiar phenomenon of faithless electors provided for within it, was, in part, created as a safety measure not only to prevent a scenario of tyranny of the majority, but also to prevent the use of democracy to overthrow democracy for an authoritarian, dictatorial or other system of oppressive government. American founding father Alexander Hamilton writing to Jefferson from the Constitutional Convention argued of the fear regarding the use of pure direct democracy by the majority to elect a demagogue set out to harm the minority rather than work for the benefit of all citizens. As articulated by Hamilton, one reason the Electoral College was created was so "that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications."
Twenty-one states do not have laws compelling their electors to vote for a pledged candidate. Twenty-nine states plus the District of Columbia have laws to penalize faithless electors, although these have never been enforced. In lieu of penalizing a faithless elector, some states, such as Michigan and Minnesota, specify the faithless elector's vote is void, though no state has yet had cause to enforce such a provision.
Until 2008, Minnesota's electors cast secret ballots. Although the final count would reveal the occurrence of faithless votes (except in the unlikely case of two or more changes canceling out), it was impossible to determine which elector(s) were faithless. After an unknown elector was faithless in 2004, Minnesota amended its law to require public balloting of the electors' votes and invalidate any vote cast for someone other than the candidate to whom the elector was pledged. After an elector has voted, their vote can be changed only in states such as Michigan and Minnesota, which invalidate votes other than those pledged. In the twenty-nine states with laws against faithless electors, a faithless elector may only be punished after they vote.
U.S. Supreme Court
The constitutionality of state pledge laws was confirmed by the Supreme Court in 1952 in Ray v. Blair in a 5–2 vote. The court ruled states have the right to require electors to pledge to vote for the candidate whom their party supports, and the right to remove potential electors who refuse to pledge prior to the election. The court also wrote:
However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional (emphasis added).
The ruling only held that requiring a pledge, not a vote, was constitutional and Justice Jackson wrote in his dissent, "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." More recent legal scholars believe "a state law that would thwart a federal elector’s discretion at an extraordinary time when it reasonably must be exercised would clearly violate Article II and the Twelfth Amendment."
The Supreme Court has never ruled on the constitutionality of state laws punishing electors for actually casting a faithless vote.
On 22 occasions, 179 electors have not cast their votes for President or Vice President as prescribed by the legislature of the state they represented. Of those, 71 electors changed their votes because the candidate to whom they were pledged died before the electoral ballot (1872, 1912). Two electors chose to abstain from voting for any candidate (1812, 2000). The remaining 106 were changed by the elector's personal interest, or perhaps by accident. Usually, the faithless electors act alone. An exception was the 1836 election, in which all 23 Virginia electors acted together.
The 1836 election was the only occasion when faithless electors altered the outcome of the electoral college vote. The Democratic ticket won states with 170 of the 294 electoral votes, but the 23 Virginia electors abstained in the vote for Vice President, so the Democratic nominee, Richard M. Johnson, got only 147 (exactly half), and was not elected. However, Johnson was elected Vice President by the U.S. Senate.
List of faithless electors
The following is a list of all faithless electors (in reverse chronological order). The number preceding each entry is the number of faithless electors for the given year.
2000 to present
1 – 2004 election: An anonymous Minnesota elector, pledged for Democrats John Kerry and John Edwards, cast his or her presidential vote for John Ewards [sic], rather than Kerry, presumably by accident. (All of Minnesota's electors cast their vice presidential ballots for John Edwards.) Minnesota's electors cast secret ballots, so unless one of the electors claims responsibility, it is unlikely the identity of the faithless elector will ever be known. As a result of this incident, Minnesota Statutes were amended to provide for public balloting of the electors' votes and invalidation of a vote cast for someone other than the candidate to whom the elector is pledged.
1 – 2000 election: Washington, D.C. Elector Barbara Lett-Simmons, pledged for Democrats Al Gore and Joe Lieberman, cast no electoral votes as a protest of Washington D.C.'s lack of voting congressional representation.
1968 to 1996
1 – 1988 election: West Virginia Elector Margarette Leach, pledged for Democrats Michael Dukakis and Lloyd Bentsen, but as a form of protest against the winner-take-all custom of the Electoral College, instead cast her votes for the candidates in the reverse of their positions on the national ticket; her presidential vote went to Bentsen and her vice presidential vote to Dukakis.
1 – 1976 election: Washington Elector Mike Padden, pledged for Republicans Gerald Ford and Bob Dole, cast his presidential electoral vote for Ronald Reagan, who had challenged Ford for the Republican nomination. He cast his vice presidential vote, as pledged, for Dole.
1 – 1972 election: Virginia Elector Roger MacBride, pledged for Republicans Richard Nixon and Spiro Agnew, cast his electoral votes for Libertarian candidates John Hospers and Tonie Nathan. MacBride's vote for Nathan was the first electoral vote cast for a woman in U.S. history. MacBride became the Libertarian candidate for President in the 1976 election.
1 – 1968 election: North Carolina Elector Lloyd W. Bailey, pledged for Republicans Richard Nixon and Spiro Agnew, cast his votes for American Independent Party candidates George Wallace and Curtis LeMay.
1912 to 1960
1 – 1960 election: Oklahoma Elector Henry D. Irwin, pledged for Republicans Richard Nixon and Henry Cabot Lodge, Jr., cast his presidential electoral vote for Democratic non-candidate Harry F. Byrd and his vice presidential electoral vote for Republican Barry Goldwater. (Fourteen unpledged electors also voted for Byrd for president, but supported Strom Thurmond, then a Democrat, for vice president.)
1 – 1948 election: Two Tennessee electors were on both the Democratic Party and the States' Rights Democratic Party slates. When the Democratic Party slate won, one of these electors voted for the Democratic nominees Harry S. Truman and Alben W. Barkley. The other, Preston Parks, cast his votes for States' Rights Democratic Party candidates Strom Thurmond and Fielding L. Wright, making him a faithless elector.
1872 to 1896
4 – 1896 election: The Democratic Party and the People’s Party both ran William Jennings Bryan as their presidential candidate, but ran different candidates for Vice President. The Democratic Party nominated Arthur Sewall and the People’s Party nominated Thomas E. Watson. The People's Party won 31 electoral votes but four of those electors voted with the Democratic ticket, supporting Bryan for President and Sewall for Vice President.
1 – 1892 election: In Oregon, three electors voted for Republican Benjamin Harrison and one faithless elector voted for the third-party Populist candidate, James B. Weaver. All four were pledged to President Harrison, who lost the election.
63 – 1872 election: Horace Greeley died before the electoral vote. 63 of his electors cast their presidential votes for four non-candidates instead of the late Greeley. Three of his electors voted for him anyway; these votes were not counted by Congress.
1812 to 1836
23 – 1836 election: The 23 electors from Virginia were pledged to vote for Democratic candidates Martin Van Buren (for President) and Richard M. Johnson (for Vice President). However, they abstained from voting for Johnson, because of his open (and therefore scandalous) liaison with a slave mistress. This left Johnson with one fewer than a majority of electoral votes. Johnson was subsequently elected Vice President by the Senate.
32 – 1832 election: Two National Republican Party electors from the state of Maryland refused to vote for presidential candidate Henry Clay and did not cast a vote for him or for his running mate, John Sergeant. All 30 electors from Pennsylvania refused to support the Democratic vice presidential candidate Martin Van Buren, voting instead for William Wilkins.
1 – 1820 election: William Plumer pledged to vote for Democratic-Republican candidate James Monroe, but he cast his vote for John Quincy Adams, who was also a Democratic-Republican, but not a candidate in the 1820 election. Some historians contend Plumer did not feel the Electoral College should unanimously elect any President other than George Washington, but this claim is disputed. (Monroe lost another three votes because three electors died before casting ballots and were not replaced.)
6 – 1808 election: Six electors from New York were pledged to vote for Democratic-Republican James Madison for President and George Clinton for Vice President. Instead, they voted for Clinton to be President, with three voting for Madison for Vice President and the other three voting for James Monroe for Vice President.
1 – 1800 election: A faithless elector in New York, pledged to vote for Democratic-Republican candidates Thomas Jefferson and Aaron Burr, tried instead to vote twice for Aaron Burr. This additional vote would have given Burr the highest total of electoral votes, and he would have been elected President. But Article 2, Section 1, of the Constitution prohibited an elector from casting both votes for an inhabitant of the same state as the elector; Burr was a resident of New York. So the state of New York reassigned the second vote to Jefferson. This placed Burr and Jefferson in a tie; Jefferson was subsequently elected by the House of Representatives.
19 – 1796 election: Samuel Miles, an elector from Pennsylvania, was pledged to vote for Federalist presidential candidate John Adams, but voted for Democratic-Republican candidate Thomas Jefferson. He cast his other presidential vote as pledged for Thomas Pinckney. An additional 18 electors voted for Adams as pledged, but refused to vote for Pinckney. This election took place prior to the passage of the 12th Amendment, so there were not separate ballots for President and Vice President. This was not deceit; it was just an attempt to make sure Pinckney didn't receive more votes than Adams, and Jefferson's victory was unintended.
- Sabato, Larry J.; Ernst, Howard R. (May 14, 2014). Encyclopedia of American Political Parties and Elections. Infobase Publishing. p. 133. ISBN 978-1-4381-0994-7. Retrieved 2016-11-15.
in 1836...the Virginia electors abstained rather than vote for Democratic vice presidential nominee Richard Johnson
- "Faithless Electors". FairVote.org. FairVote. Retrieved September 24, 2015.
- "U. S. Electoral College: Who Are the Electors? How Do They Vote?".
- "Michigan Election Law Section 168.47". Legislature.mi.gov. Retrieved August 26, 2010.
- "208.08, 2008 Minnesota Statutes". Revisor.leg.state.mn.us. Retrieved May 5, 2009.
- Ray v. Blair 343 U.S. 214 (1952)
- Sheppard, Stephen M. (May 21, 2015). "A Case For The Electoral College And For Its Faithless Elector" (PDF). Wisconsin Law Review. 2015 (1).
- "Vote for Edwards instead of Kerry shocks Minnesota electors". December 17, 2004.
- "MPR: Minnesota elector gives Edwards a vote; Kerry gets other nine". News.minnesota.publicradio.org. Retrieved May 5, 2009.
- Stout, David (December 19, 2000). "The 43rd President: The Electoral College; The Electors Vote, and the Surprises Are Few". The New York Times. Retrieved November 30, 2009.
But it was Mr. Gore who suffered an erosion today. Barbara Lett Simmons, a Gore elector from the District of Columbia, left her ballot blank to protest what she called the capital's "colonial status" – its lack of a voting representative in Congress.
- Johnson, Sharen Shaw (January 5, 1989). "CAPITAL LINE: [FINAL Edition]". USA Today. Retrieved February 11, 2016. (subscription required (. ))
Even though Bensten sought the vice presidency, Margarette Leach of West Virginia voted for him to protest the Electoral College's winner-take-all custom.
- Chernow, Ron. Alexander Hamilton. New York: Penguin, 2004. p. 514.
- List of Electors Bound by State Law and Pledges, as of November 2000
- "The Electoral College – "Faithless Electors"". Official website of the Center for Voting and Democracy. 2002. Retrieved December 5, 2006.
- "Faithless Electors". Website of FairVote, formerly the Center for Voting and Democracy. Retrieved June 11, 2008.