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"Faithless Electors": The Wild Card [Commentary]

Professor William G. Ross, Cumberland School of Law, Samford University

In past elections, so-called "faithless electors" cast innocuously eccentric votes that provided a quaint reminder of one of the archaic curiosities of the presidential selection process. After providing a rare element of surprise in the otherwise perfunctory Electoral College ritual, these independent spirits who voted for someone other than their party's nominee would vanish from the national spotlight, to be immortalized only in obscure historical footnotes.

This year, however, faithless electors could change the outcome of the election.

If George W. Bush wins Florida's 25 electoral votes, he will have only a three vote lead over Al Gore 271 to 268. If only two electors defected from Bush, the vote would tie and the election would be decided by the House of Representatives. If Bush lost three votes, Gore would win if none of Gore's own electors defected.

Various politicians and scholars dismiss these prospects as preposterous. They point out that faithless electors have cast only nine of the 21, 291 electoral votes recorded since 1796. No elector has defected since 1988, and two defections never have occurred in a single election.

Moreover, no faithless elector since 1796 has voted for the candidate of the major opposing party. Persons who scornfully dismiss the prospect of defections this year also emphasize that most electors are devout party loyalists who hold public office, perform yeoman service in the party trenches, or donate generously to the party purse. Electors often are selected precisely because of their political reliability, and an elector's failure to vote for her party's candidate normally would destroy the party career that she so diligently has labored to build.

In an election that has thus far confounded all expectations, however, additional bizarre occurrences should surprise no one.

For the first time since the disputed election of 1876, there is at least a modest possibility of decisive defections by electors. During recent weeks, two Republican electors in Florida and one in Arizona have made provocative remarks about their independence. Moreover, several other Republican electors polled by the Wall Street Journal coyly declined to declare without equivocation that they will vote for Bush. Meanwhile, one Democratic elector in the District of Columbia has threatened to withhold her vote for Gore to protest the federal government's treatment of the District.

Although some observers contend that electoral defections are particularly unlikely this year since they could actually affect the election's outcome, the closeness of the election might actually encourage defections. As Lawrence D. Longley, an Electoral College expert, predicted at a 1992 congressional hearing, "faithless electors...would likely proliferate in the instance of an election producing a very close electoral vote count." Although defection in a close contest naturally would aggravate the obloquy they would suffer within their own party, some electors might succumb to the lure of celebrity. There is also a danger that some would hope or expect to receive favors from the opposing party, although there is presently no evidence that any unsavory deals are being made. In a recent letter to the Washington Times, a Bush elector from Texas warned that many electors may be "in financial straits" and that "[c]asting a vote for the 層ill of the people' may sound more convincing if it also is in one's economic self-interest."

There is no doubt that some persons are encouraging Bush electors to defect to Gore.

Many Republican electors report that they are receiving numerous communications from strangers who urge them to vote for Gore. A Web site operated by two Claremont-McKenna students has posted names of Bush electors whose states require no pledge of loyalty and is asking its visitors to urge these electors to vote for Gore because the election of a candidate who failed to win the popular vote would create a "serious legitimacy crisis."

Encouragement of electors to change their votes is not a new idea. Democrats appear to have made a similar appeal to some Republicans after the election of 1876, when the shift of one electoral vote would have elected Samuel Tilden, who had received more votes than his Republican opponent, Rutherford B. Hayes. In 1977, Robert Dole revealed that Republicans had considered trying to woo Democratic electors during the brief period after the 1976 election when Ohio's electoral votes remained in the balance since a shift of five electoral votes would have thrown the election to Gerald R. Ford if Ohio had gone Republican.

The mischief that such efforts could engender has led even some advocates of retention of the Electoral College to advocate a constitutional amendment to eliminate human electors and provide for an automatic tally of electoral vote. Judith A. Best, a leading authority on the Electoral College, is among the advocates of this procedure.

On November 21, Gore publicly disavowed any effort to encourage electors to change their vote and he declared that he would not accept such votes. Early in December, a spokesman for Gore reiterated Gore's disapproval of attempts to sway electors, but indicated that Gore might lack any legal means to reject the votes of defectors.

While there probably is no way that Gore could actually reject faithless electoral votes, he might be able to persuade Congress to undertake the constitutionally questionable act of rejecting them. Gore also could enable Bush to become president pursuant to the 25th Amendment: after his inauguration, Gore could arrange for Lieberman's resignation and then appoint Bush vice president (with the consent of Congress) and then resign as president. Of course, this is a most unlikely possibility.

Like so many other aspects of this unprecedented election, the legal implications of faithless voting are muddled, with a maze of disparate authorities pointing in different directions.

The Framers of the Constitution appear to have expected electors to vote freely, since they did not envision political parties or a universal franchise. As Neal R. Peirce and Lawrence D. Longley have pointed out, the Framers intended that the Electoral College would act primarily as a nominating mechanism, with the final decision normally made by the House of Representatives.

With the rapid development of a party system during the early years of the Republic, electors quickly became the instruments of their parties. Custom firmly established that electors would vote for their party's candidates. Generations of electors have therefore tacitly echoed the refrain of Sir Joseph Porter in Gilbert and Sullivan's H.M.S. Pinafore: "I always voted at my party's call and I never thought of thinking for myself at all."

Only two electors defected from their party in the Republic's first century and a half: a Federalist deserted John Adams to vote for Thomas Jefferson in 1796, and a faithless elector in 1820 introduced a chord of 礎ad feeling' into the non-partisan "Era of Good Feelings" by denying James Monroe a unanimous re-election.

Although the remaining seven faithless electors have defected from their candidate during the past half-century (in 1948, 1956, 1960, 1968, 1972, 1976, and 1988) , this hardly can be said to have broken the tradition of party fealty. Six of the seven have been conservatives who have voted for a conservative alternative to their own party's candidate rather than for the opposing party's candidate, and the seventh voted for her party's vice presidential nominee (Lloyd Bentsen) in preference to its presidential nominee (Michael Dukakis). As recently as 1996, one South Carolina elector considered voting for conservative Republican Pat Robertson rather than for Republican nominee Robert Dole but remained faithful to Dole after he was advised that his defection would be illegal under South Carolina law.

It is therefore possible that some conservative Bush electors might vote for someone other than Gore to dramatize their disenchantment with mainstream Republicanism, although this is highly unlikely in a close election. It is also possible, as CNN commentator Jeff Greenfield recently pointed out, that conservative Bush electors might threaten to withhold their vote in order to try to extract concessions from Bush.

Approximately half the states and the District of Columbia have enacted statutes that require electors to pledge themselves to vote for their party's nominee. These statutes take various different forms. Only a few impose any penalty for violation, and these penalties generally are light. No faithless elector ever has been prosecuted under one of these statutes.

State supreme court decisions in Kansas in 1896 and in Ohio in 1948 held that electors were free to vote for whomever they chose, at least in the absence of a statute binding them to a candidate. As the Supreme Court of Ohio declared in its opinion in State v. Hummel, "[i]t is only by force of a moral obligation, not a legal one, that the presidential electors pledged to certain candidates fulfill their pledges after election." In 1948, the Supreme Court of Alabama stated in an advisory opinion that electors could vote freely even though a statute required them to support their party's candidate.

A New York trial court in 1933 reached the opposite conclusion in Thomas v. Cohen, a decision holding that names of electors do not need to appear on the ballot because an elector has "a sacred and compelling" obligation to vote for his party's nominee. The court explained that the original discretion of electors had "ripened into a bounden duty." The New York court indicated in dictum that a writ of mandamus could issue to require an elector "to carry out the mandate of the voters of his state."

In 1952, the U.S. Supreme Court in Ray v. Blair, a five to two decision, held that the U.S. Constitution does not prevent a political party from requiring elector candidates in its primary to pledge support for its presidential and vice presidential nominees. Accordingly, the Court reversed a writ of mandamus requiring Alabama's Democratic Party from certifying an elector candidate who refused to sign the pledge. The Court reasoned that the Party was free to require a pledge in the absence of any language in Article II of the Constitution or the Twelfth Amendment that would forbid such a pledge. Moreover, the Court referred to the long tradition of electors supporting their party's nominee. The Court also pointed out that the pledge was only a condition of candidacy in the primary, although the Court hinted that it would reach the same conclusion even if the restraint were imposed upon electors after their selection. The Court did not address the question of sanctions for violation of the pledge.

A dissenting opinion of Justice Robert H. Jackson, joined by William O. Douglas, argued that the language and history of Article II and the Twelfth Amendment contemplate "that electors would be free agents, to exercise an independent and nonpartisan judgment." Although Jackson acknowledged that electors had become "voluntary party lackeys and intellectual nonentities" and that "the Electoral College suffered atrophy almost indistinguishable from rigor mortis," he denied that "powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse."

Even if electors may vote freely, with or without state restrictions, there is the possibility that Congress might reject the vote of any elector who failed to support her party's nominee, particularly if the elector had formally pledged such support pursuant to state law. A federal statute, the Electoral Count Act of 1887 (the same statute that was at issue in part in the recent U.S. Supreme Court litigation), provides that Congress must count those votes that it determines to have been "regularly given." The meaning of this language is not clear. As Professor Michael J. Glennon of the University of California at Davis School of Law recently observed, these words "could turn out to be the shibboleth of 2001, much as 訴mpeachable offence' was in 1999. The phrase is undefined."

Congress has considered the meaning of this phrase only once, in January 1969, when it debated about whether to accept the vote of Dr. Lloyd W. Bailey, a North Carolina Republican elector who voted for American Independent candidate George C. Wallace rather than Republican Richard M. Nixon, who had carried North Carolina. Senators who favored rejection of Bailey's ballot argued that faithless electors deprive voters of due process and equal protection in violation of the Fourteenth Amendment. After extended deliberations, Congress accepted Bailey's ballot by a margin of 58 to 33 in the Senate and 228 to 170 in the House. Although the vote did not follow party lines, conservatives tended to favor electoral independence, while liberals generally opposed it. Many of the senators who voted to count Bailey's vote emphasized that they nevertheless favored reform or abolition of the Electoral College. Al Gore's father, Albert Gore, Sr., voted to accept Bailey's ballot, and he declared during the debate that "the presidential elector duly chosen is an independent agent."

The votes of the eight other faithless electors have not precipitated congressional challenges, although none of these electors came from states that prohibited electors from voting for someone other than her party's candidate. The only time that Congress has refused to count electors' votes was in 1872, when it rejected three electoral votes for Horace Greeley, the Democratic candidate, who had died shortly after the election.

In a detailed analysis of the legislative history and language of the Act published four years ago, Beverly J. Ross and William Josephson concluded that Congress's decision to count Dr. Bailey's vote "was constitutionally appropriate" because Article II expressly permits each state to appoint electors in such Manner as its legislature may direct. Although Article II permits Congress to count electoral votes and to select the time of electors appointment and the date on which they vote, Ross and Josephson concluded that "[t]hese powers are hardly mandates for Congress to impose a federal binding requirement under the Electoral Count Act."

When, however, a state (unlike North Carolina in 1968) has a law prohibiting defection by electors, Congress or a court could much more easily interpret the phrase "regularly given" to permit Congress to reject the vote of a faithless elector. Ronald D. Rotunda has explained that Congress also might have concurrent jurisdiction to enforce these state laws insofar as congressional action merely would require "the elector to keep his campaign pledge, thus preventing what, in some cases, could otherwise be a fraud on the voters."

As Bruce Fein recently pointed out, Congress could retroactively amend the Electoral Count Act to prohibit electors from defecting from their party's candidate. Retroactive application of the Act would be ironic, however, since the statute was intended in part to prevent states from changing the rules for election procedure after an election. Although such a statute might be constitutional, particularly under the Fourteenth Amendment, its enactment might unduly intrude upon the powers of those states that do not bind electors.

In the face of legal ambiguities about whether an elector may defect from her party's candidate, each elector must search her own conscience in determining whether to switch her vote. Although electors in the states that bind electors to their party's candidate might regard themselves as legally bound to vote for Bush despite ambiguities about the constitutionality of such legislation, the 172 Bush electors in the eighteen states carried by Bush that do not prohibit defection by electors are particularly free to base their decision upon their own concepts of morality and justice.

For most electors, the decision is inevitable. Party loyalty and partisan sympathies firmly bind most electors to their party's candidate.

Moreover, most electors appear to believe that personal honor requires fidelity to their pledge to support their party's nominee. Even many electors whose states do not explicitly bind their vote believe that they would break faith with both the party that nominated them and the voters who elected them if they frustrated the wishes and expectations of that party and those voters. When Democrats urged the poet James Russell Lowell of Massachusetts to switch his electoral vote from Hayes to Tilden in 1876, Lowell explained his refusal by declaring that "it is a plain question of trust." During recent weeks, many of today's Republican electors have echoed this sentiment..

If Bush wins Florida's electoral votes some Bush electors nevertheless may be responsive to the argument that justice requires Gore's election because Gore appears to have won more popular votes. Doubts about the propriety or legality of Bush's victory in Florida also might influence some electors that Gore has a moral claim to the presidency. Some G.O.P. electors also might conclude that Bush's election would be inimical to long-term Republican and national interests since Democratic rancor over the election would greatly diminish Bush's ability to effectively govern.

On the other hand, Gore's failure to receive an absolute majority of the vote may diminish any moral claim in favor of his election. Moreover, the closeness of the popular vote less than one-third of one percent of the vote may weaken any argument that Bush's election clearly would frustrate the popular will. Since both Republicans and Democrats have alleged voting irregularities, some Republican electors may share the perception, not uncommon among Republicans, that Bush actually won the popular vote.

Any Bush elector who believes that Gore has a moral claim to the presidency or that Bush's claim to the presidency is so clouded that his election would be adverse to Republican or national interests might therefore conclude that he could vote for Gore without breaking faith with his party or with the voters since neither anticipated the amazing turn of events since the election. This position would be difficult to maintain, however, if the Republican Party did not countenance vote-switching. Moreover, public opinion polls indicate that the vast majority of Bush voters still believe that Bush should receive the presidency.

Defecting electors also might claim that they were placing the national interest above the interest of their party. As Dr. Bailey declared in a public letter explaining his defection from Nixon in 1968, "it is my duty to place loyalty to my country before loyalty to my political party." Similarly, the novelist James A. Michener, a 1968 Democratic elector in Pennsylvania, contended that the national interest justified his vow before the election to vote for someone other than Democratic nominee Hubert Humphrey if no candidate received an Electoral College majority and if such defection were necessary to prevent "chicanery" in the House of Representatives.

Even if no defections occur this year, the widespread speculation about the prospect of faithless electors in the context of a close election has called sharp attention to yet another anomaly in the presidential selection process. The "faithless elector" problem almost certainly will be among the multitude of issues that will receive careful consideration by Congress and citizens during the months following the outcome of the election.

December 9, 2000

William G. Ross teaches Constitutional Law and Constitutional History at Cumberland School of Law, Samford University, Birmingham, Alabama. He is a 1979 graduate of Harvard Law School. He welcomes comments on his columns at JURIST@law.pitt.edu