It’s somewhat uncommon knowledge that when the American public hits the polls to vote for president, they’re not actually voting directly for the president. Rather, they’re voting for a slate of electors who will then cast their votes in favor of the candidate who won their state. It’s essentially a leftover policy from the creation of our nation wherein the population did not directly participate in elections until 1824. Its retention is seen as crucial in upholding the purpose of the Electoral College.
Last week, we discussed the Twelfth Amendment in this column, which lays the foundation for how presidential elections are administered and what happens when no candidate receives the magic number of 270. There is another asterisk, however, to how presidential elections are run, and that is in the rare circumstances an elector is considered “faithless.”
What is a Faithless Elector?
A faithless elector is a party representative who does not uphold the election result and instead votes for another person for either the office of the presidency or vice presidency, or both. Alternatively, a faithless elector might be one who abstains from voting.
Electors are generically nominated and chosen by a state’s political party or the party’s presidential nominee. In short, there are slates of electors in each of the fifty states and the District of Columbia chosen by both parties, in the event that either candidate wins each state and the capital.
Since electors are typically chosen by party leadership, they run a large risk of opting to not back the winner of their state’s popular vote, which might result in censure and/or political retaliation. Some states impose penalties for not casting their votes in favor of the winning party.
As of 2020, there have been a total of 165 faithless electors, ninety of whom were for president, and seventy-five of whom were for vice president. Of much relief to the American public, a faithless elector has never swung an election. Essentially, an elector’s option to be “faithless” is more of a point of personal privilege and/or to send a message surrounding a particular party and/or candidate.
Neither the U.S. Constitution nor any federal statute address the pledging of electors; all pledging laws originate at the state level, as the states are free to administer their own elections. The Supreme Court upheld the states’ rights to impose pledging laws in their 1952 decision Ray V. Blair, and the Court also ruled that states are free to enforce laws that bind electors to the winner of the popular vote in their state in the 2020 decision of Chiafalo V. Washington.
How Are Electors Chosen?
Article II, Section 1 of the Constitution states that electors cannot be an incumbent member of Congress or a federal officeholder. The Fourteenth Amendment, ratified after the end of the Civil War, states that electors cannot be anyone who “engaged in insurrection or rebellion against the United States, or given aid or comfort to its enemies.” Congress may remove this disqualification by a two-thirds vote in each chamber. The states are then free to set their own rules thereafter.
Electors are chosen predominately by the states’ political parties at their respective state conventions. Some states choose electors by a vote of the state party’s central committee.
Eight states actually print their electors’ names on the ballots when the public votes for president: Arizona, Idaho, Louisiana, North Dakota, Oklahoma, Rhode Island, South Dakota, and Tennessee.
Faithless Elector Laws By State
As of 2024, thirty-eight states plus D.C. have laws that require electors to vote for the candidates to whom they are pledged before an election result is announced in their state. Fourteen states have laws that void an elector’s vote if that vote is contrary to their pledge and they are subsequently replaced by another elector. Two states, North Carolina (16 electoral votes) and Oklahoma (7), impose fines for faithless electors, along with a voided vote and replacement. Two states, New Mexico (5) and South Carolina (9) still impose penalties on their faithless electors but still count their votes nonetheless.
Fifteen states, including New York, simply void an elector’s vote. Sixteen states and D.C. count the faithless votes without penalty. Fifteen states currently have no laws on the books regarding faithless electors.
State laws are generally open about a person for whom a faithless elector might vote. Presidential candidacy is not required, only presidential eligibility.
The 2016 Election – The Most Recent Case of Faithless Electors
Although faithless electors aren’t commonly involved in the presidential election process, several states were at the forefront of this in 2016. A total of seven electors in three states were faithless to those states’ winners, the most in any one election since 1896. The 1896 election was also the last time until 2016 that there were multiple faithless electors in one election.
Donald Trump (R-NY) lost two electors from Texas, resulting in him winning just thirty-six electoral votes. One electoral backed then-Governor John Kasich (R-OH), who had run for president in the Republican primary that year, and another backed for Congressman Ron Paul (R-TX). At 81 years old, Paul became the oldest person to have ever received an electoral vote, despite not running for office. One elector was faithless in his vote for Mike Pence (R-IN) as vice president, instead opting for GOP nominee and brief running mate of Senator Ted Cruz (R-TX), Carly Fiorina (R-CA).
It was the first time since 1972 that a winning presidential candidate lost an electoral vote. Richard Nixon (R-CA) had lost a Virginia vote to Libertarian nominee John Hospers.
However, Hillary Clinton (D-NY) lost more electors than Trump, with four defecting from her in Washington. Three electors backed former Secretary of State Colin Powell, of Virginia, making him the first black Republican to receive electoral votes. Native American activist Robert Satiacum, Jr., voted for fellow activist Faith Spotted Eagle, a member of the Yankton Sioux Tribe who attempted to block the construction of the Keystone XL Pipeline and the Dakota Access Pipeline. Spotted Eagle, of South Dakota, became the first Native American to receive an electoral vote for president.
The three electors who backed Powell each chose separate vice presidential nominees: Senator Elizabeth Warren (D-MA), Senator Maria Cantwell (D-WA), and Senator Susan Collins (R-ME). The elector who chose Faith Spotted Eagle opted for environmentalist and activist Winona LaDuke of Minnesota.
With the four defections from the slate, Clinton only took home eight electoral votes from Washington, instead of its usual twelve.
Clinton also lost an elector from Hawaii, who backed Senator Bernie Sanders (I-VT) for president and Senator Warren for vice president.
The result was a slightly decreased Electoral College result from the raw count. Trump had won with 306 votes to Clinton’s 232. With the faithless electors’ votes considered, the final count became 304 for Trump and 225 for Clinton.
Other electors attempted to be faithless in other states, but state laws precluded them from doing so. The two electors who opposed Trump in Texas were part of a greater movement called the “Hamilton Electors.” The group tried to find thirty-seven Republican electors willing to defect from Trump to deny him the election and force a contingent vote in the U.S. House, which likely would have picked Trump anyway. The namesake of their group was Alexander Hamilton, who expressed voting for the president based on conscience to prevent someone unfit for office from assuming the presidency.
Although it has been difficult to estimate just how many faithless Republican electors there might have been, at least twenty additional Republican electors reported accepting anonymous pro bono legal counsel if they were to support a different candidate. Republicans members of the Electoral College also reported in December 2016 that they were being coerced to back a different candidate with “threats of political reprisal.”
Three Democratic faithless electors were invalidated. In Maine, one elector attempted to back Senator Bernie Sanders for president, with then-vice presidential candidate Tim Kaine (D-VA) for the vice president. He later changed his vote to Clinton.
Another Democratic elector in Minnesota backed Sanders for president and then-Congresswoman Tulsi Gabbard (D, HI-02) for vice president. He was replaced by an alternate elector.
Finally, a Colorado elector attempted to vote for John Kasich for president, but was barred from listing a vice presidential nominee. He was eventually replaced by an alternate.
The four faithless electors from Washington were each fined $1,000 for breaking their pledge. Three electors appealed the fines, which were upheld by the Washington Supreme Court. The electors were later unsuccessful in their appeal to the U.S. Supreme Court in the aforementioned decision, Chiafalo V. Washington.
Notable Cases of Faithless Electors in History
1796: Nineteen electors were faithless in this election. Samuel Miles, a Pennsylvania elector, was pledged to vote for Federalist John Adams, but instead voted for Democratic-Republican Thomas Jefferson. His other vote was pledged to Thomas Pinckney, as the Twelfth Amendment had not yet been ratified and there was no process for selecting presidential and vice presidential candidates separately. Eighteen other electors backed Adams for president, but did not vote for Pinckney, as an attempt to foil Alexander Hamilton’s perceived plot to elect Pinckney as president. Jefferson became Adams’ vice president, the only time in history that the two officeholders were from different political parties.
1820: One New Hampshire delegate backed John Quincy Adams, despite James Monroe having been uncontested for re-election. Some speculate he wanted George Washington to be the only unanimously-elected president, while others say he was using the moment to elevate Adams, his friend, as a possible candidate. Adams would end up winning in 1824.
1836: Twenty-three Virginia electors refused to back Richard Johsnon (D-KY) due to his public relationship with an enslaved woman. Johnson was one vote short of a majority, throwing the election to the Senate. He was elected as vice president on the first ballot.
1864: One Nevada elector was snowbound, preventing him from casting a ballot.
1872: Sixty-six electors were faithless, the most in any one election, as the Liberal Republican-Democratic nominee Horace Greeley of New York died before the Electoral College vote in December. Three electors cast votes for him as pledged, while sixty-three backed other candidates. The three posthumous votes for Greeley were rejected by Congress.
1896: Twenty-seven electors were faithless, mostly due to the fusion ticket between the Democratic and the People’s parties that coalesced around William Jennings Bryan. However, the coalition ran different vice presidential nominees. These twenty-seven electors backed Thomas Watson from Georgia instead of Bryan’s running mate in Arthur Sewall (D-ME), despite the People’s Party receiving no electoral votes.
1948: Strom Thurmond (D-SC) campaigned on the States’ Rights ticket in response to racial integration. A Tennessee elector was an elector for both Harry Truman (D-MO) and Thurmond. Despite Truman having won the election, the Tennessee elector had actively campaigned for Thurmond and backed him in the final vote.
1960: An Oklahoma elector contacted the other 219 Republican electors to vote for the non-candidates of Harry Byrd (D-VA) for president and Barry Goldwater (R-AZ) for vice president, instead of Richard Nixon (R-CA) and Henry Cabot Lodge, Jr. (R-MA). Fourteen unpledged electors, eight from Mississippi and six from Alabama, backed Byrd for president and Strom Thurmond for vice president.
2000: A Washington, D.C., elector abstained overall to protest D.C.’s lack of voting congressional representation. It was the first abstention since 1864.
2004: One Minnesota elector cast his/her presidential vote for “John Ewards” [sic], which is assumed to be a typo, relating to then-running mate of John Kerry (D-MA), John Edwards (D-NC). At the time, Minnesota electors conducted their votes on secret ballots, a practice that ended with this instance.
