Legal As She Is Spoke

By Will Bartholomew

You may remember something about the Electoral College from high school social studies class. If you don’t, I’ll quickly summarize: when we cast our ballots for president and vice president, we aren’t directly voting for the candidates. Instead, we’re voting to empower “electors” from our states so they cast their ballots for these candidates.

Ever wondered what’s stopping these electors from changing their minds, bucking off, and going their own way?

On September 13 The Associated Press reported that a few Republican electors are unhappy with their current choices. (They prefer Ron Paul). And while one of these electors resigned her post rather than contemplate a vote for the Romney-Ryan ticket, the others are exploring alternatives.

The article explained that only about half the states have laws requiring electors to follow the popular vote, and only a handful of those laws carry penalties if they’re broken. Election officials have a solution, though.  They plan to turn to the courts to enforce the laws if electors go rogue.

LASIS looked into the “faithless elector” scenario.  Election officials will need a better plan.

To put this issue in its proper perspective: faithless electors have never affected the outcome of a presidential election.  And electors vote according to their states’ popular vote over 99% of the time. In fact, in our nation’s history, electors have gone against he will of the people only 156 times — and of those, nearly half were because a candidate died between the popular vote and the electoral vote.

The two most recent faithless votes were cast during the 2000 and 2004 elections. In 2000, Washington, D.C. elector Barbara Lett-Simmons cast a blank ballot instead of voting for Al Gore to protest D.C.’s lack of representation in Congress. (LASIS reporter Hallie Schiffman-Shilo has protested, too). Four years later, a Democratic elector in Minnesota cast his presidential vote for John Edwards, the vice-presidential candidate, instead of John Kerry, though this is thought to have been a mistake.

Today, 26 states and the District of Columbia have laws mandating electors to follow the popular vote. And a federal law, 3 U.S.C § 15 purports to give Congress the power to refuse to accept electoral votes that have not been “regularly given.”

But whether there is a legal remedy to be had remains an open question.

The Supreme Court has weighed-in on the constitutionality of laws binding electors to the popular vote only once, in 1952’s Ray v. Blair, when the Court upheld the Alabama Democratic Party’s requirement that electors sign a pledge to cast their vote for the party’s nominee.

But Blair only upheld the Party’s requirement to sign the pledge – it didn’t mandate that electors to actually follow through with the pledge, let alone specify what would happen if they didn’t. Even this narrow holding was subject to strong criticism. Justice Jackson, in his dissent, argued against the constitutionality of the Alabama law because, in his view, it impermissibly restricted the freedom for electors that the framers of the Constitution intended.

None of these state laws have ever been used to prosecute a faithless elector, and some don’t even specify penalties or remedies. Nevada’s law, for instance, mandates that presidential electors “shall vote only for the nominees for President and Vice President of the party or the independent candidates that prevailed in this State in the preceding general election.” That’s it, though; the law doesn’t provide for any remedy or punishment if an elector deviates from the popular vote.

Other states are harsher. North Carolina’s law calls for a faithless elector’s vote to be cancelled, and for that elector to be replaced and fined $500. New Mexico’s law makes an elector’s failure to follow the popular vote a fourth-degree felony.

But these punishments and remedies may have more bark than bite. A 2004 Congressional Research Service Report notes that, a la Justice Jackson’s opinion in Blair, many commentators believe that based on the text, structure, and history of our federal Constitution, any laws binding electors and the pledges that electors make “are likely to be constitutionally unenforceable” (emphasis in original).

Even federal law may be powerless to stop faithless electors. The authority granted to Congress has only been considered once. In 1968, Lloyd W. Bailey, a Republican elector for Richard Nixon, cast his vote instead for George Wallace of the American Independent Party. Perhaps because this vote had no affect on the outcome of the election, (spoiler alert: Nixon won), Congress voted to uphold it.

Without a constitutional amendment, or at least a court opinion upholding the enforceability of faithless elector laws, we may just have to trust that electors will mostly do what they say they will do.

What the heck. A close election is looking less and less likely this time around, anyway.