Dealing with Faithless Electors: A Guide to State Laws Attempting to Bind Electors

Awarding Electoral Votes: Winner-Take-All or District System

All 50 states and DC award electoral votes using either the winter-take-all or district system. In 48 states and DC, when a candidate for president wins a state’s popular vote, that party’s slates of electors will be the one to cast the vote for President on December 19. In Florida, for example, where Donald Trump won the state’s popular vote, the 29 electors nominated by the Republican Party in Florida will be selected and will cast their votes for president. Maine and Nebraska use a District System – wherein, one electoral vote is awarded to the presidential candidate who wins the popular vote in each congressional district, and the remaining two electoral votes are awarded to the candidates receiving the most votes statewide. Under this system, it is possible to split the state’s electoral votes.

Faithless Electors

Neither the Constitution nor federal law requires electors to vote for the presidential candidate of the party who nominated them. According to FairVote,

Since the founding of the Electoral College, there have been 157 faithless electors. 71 of these votes were changed because the original candidate died before the day on which the Electoral College cast its votes. Three of the votes were not cast at all as three electors chose to abstain from casting their electoral vote for any candidate. The other 82 electoral votes were changed on the personal initiative of the elector.

According to the National Conference of State Legislators,

Some states have passed laws that require their electors to vote as pledged. These laws may either impose a fine on an elector who fails to vote according to the statewide or district popular vote, or may disqualify an elector who violates his or her pledge and provide a replacement elector. No elector has ever been penalized or replaced — nor have these laws been fully vetted by the courts.

Below is a list of states with laws attempting to bind electors (this list is missing Maryland; relevant information is included below).

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Relevant Provisions of State Laws Regulating Electors –

Alabama – “Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen. Each person so listed shall execute the following statement which shall be attached to the certificate or petition when the same is filed with the Secretary of State: “I do hereby consent and do hereby agree to serve as elector for President and Vice-President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such elector for _____ for President and _____ for Vice-President of the United States” (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached).”

Alaska – “The party shall require from each candidate for elector a pledge that as an elector the person will vote for the candidates nominated by the party of which the person is a candidate.”

California – “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent, one of whom, at least, is not an inhabitant of this state.”

Colorado – “Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.”

Connecticut – “The presidential electors shall meet at the office of the Secretary of the State at twelve o’clock, noon, on the first Monday after the second Wednesday of the December following their election and, as required by the Constitution and laws of the United States, shall cast their ballots for President and Vice President. Each such elector shall cast his ballots for the candidates under whose names he ran on the official election ballot, as provided in section 9-175. If any such elector is absent or if there is a vacancy in the electoral college for any cause, the electors present shall, before voting for President and Vice President, elect by ballot an elector to fill such vacancy, and the person so chosen shall be a presidential elector, shall perform the duties of such office and shall cast his ballots for the candidates to whom the elector he is replacing was pledged.”

Delaware –  ”In all cases, the electors chosen or appointed in this State for the election of a President and Vice-President of the United States under this chapter shall be required to cast their individual votes in accordance with the plurality vote of the voters in this State.”

District of Columbia – “Each person elected as elector of President and Vice President shall, in the presence of the Board, take an oath or solemnly affirm that he or she will vote for the candidates of the party he or she has been nominated to represent, and it shall be his or her duty to vote in such manner in the electoral college.”

Florida – “The Governor shall nominate the presidential electors of each political party. The state executive committee of each political party shall by resolution recommend candidates for presidential electors and deliver a certified copy thereof to the Governor before September 1 of each presidential election year. The Governor shall nominate only the electors recommended by the state executive committee of the respective political party. Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent.”

Hawaii – “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for president and that person for vice president of the United States, who are, respectively, the candidates of the political party or group which they represent, one of whom, at least, is not an inhabitant of this State.”

Maine – “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district.”

Maryland – “After taking the oath prescribed by Article I, § 9 of the Maryland Constitution before the Clerk of the Court of Appeals or, in the Clerk’s absence, before one of the Clerk’s deputies, the presidential electors shall cast their votes for the candidates for President and Vice President who received a plurality of the votes cast in the State of Maryland.”

Massachusetts – “The state committees of the respective political parties at a meeting called for the purpose shall nominate the presidential electors. The surnames of the candidates for president and vice president of the United States shall be added to the party or political designation of the candidates for presidential electors. Such surnames and a list of the persons nominated for presidential electors, together with an acceptance in writing signed by each candidate for presidential elector on a form to be provided by the state secretary, shall be filed by the state chairmen of the respective political parties not later than the second Tuesday of September. Said acceptance form shall include a pledge by the presidential elector to vote for the candidate named in the filing.”

Minnesota – “Each elector nominee and alternate elector nominee of a political party shall execute the following pledge: “If selected for the position of elector, I agree to serve and to mark my ballots for president and vice president for the nominees for those offices of the party that nominated me.” Each elector nominee and alternate elector nominee of an unaffiliated presidential candidate shall execute the following pledge: “If selected for the position of elector as a nominee of an unaffiliated presidential candidate, I agree to serve and to mark my ballots for that candidate and for that candidate’s vice-presidential running mate.” The executed pledges must accompany the submission of the corresponding names to the secretary of state.” §208.46: “An elector who refuses to present a ballot, presents an unmarked ballot, or presents a ballot marked in violation of the elector’s pledge executed under section 208.43 or 208.45, paragraph (c), vacates the office of elector, creating a vacant position to be filled under section 208.45.”

Michigan – “At any time before receipt of the certificate of the governor or within 48 hours thereafter, an elector may resign by submitting his written and verified resignation to the governor. Failure to so resign signifies consent to serve and to cast his vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated him. Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy.”

Mississippi – “Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen. Each person so listed shall execute the following statement which shall be attached to the certificate or petition when it is filed with the State Board of Election Commissioners: “I do hereby consent and do hereby agree to serve as elector for President and Vice President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such for for President and for Vice President of the United States” (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached). (4) The State Board of Election Commissioners and any other official charged with the preparation of official ballots shall place on such official ballots the words “PRESIDENTIAL ELECTORS FOR (here insert the name of the candidate for President, the word ‘AND’ and the name of the candidate for Vice President)” in lieu of placing the names of such presidential electors on the official ballots, and a vote cast therefor shall be counted and shall be in all respects effective as a vote for each of the presidential electors representing those candidates for President and Vice President of the United States. In the case of unpledged electors, the State Board of Election Commissioners and any other official charged with the preparation of official ballots shall place on such official ballots the words “UNPLEDGED ELECTOR(S) (here insert the name(s) of individual unpledged elector(s) if placed upon the ballot based upon a petition granted in the manner provided by law stating the individual name(s) of the elector(s) rather than a slate of electors).”

Montana – (2) The electors shall vote by separate ballots for one person for president and one for vice president of the United States. (3) The electors shall cast their ballots for the persons who received the highest number of votes for president and vice president of the United States, respectively, in the most recently conducted general election in the state of Montana.

Nebraska – “Each at-large presidential elector shall mark his or her ballot for the presidential and vice-presidential candidates who received the highest number of votes in the state and consistent with his or her pledge. Each congressional district presidential elector shall mark his or her ballot for the presidential and vice-presidential candidates who received the highest number of votes in his or her congressional district and consistent with his or her pledge. (4) A presidential elector who refuses to present a ballot, who attempts to present an unmarked ballot, or who attempts to present a ballot marked in violation of his or her pledge vacates the office of presidential elector.”

Nevada – “1. Except as otherwise provided in subsection 2, a nominee for presidential elector or an alternate may not serve as a presidential elector unless the nominee for presidential elector or the alternate signs a pledge in substantially the following form: ‘If selected for the position of presidential elector, I agree to serve as such and to vote only for the nominees for President and Vice President of the political party or the independent candidates who received the highest number of votes in this State at the general election.'”

New Mexico –  “A.   All presidential electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as presidential electors. B.   Any presidential elector who casts his ballot in violation of the provisions contained in Subsection A of this section is guilty of a fourth degree felony.”

North Carolina – “Any presidential elector having previously signified his consent to serve as such, who fails to attend and vote for the candidate of the political party which nominated such elector, for President and Vice-President of the United States at the time and place directed in G.S. 163-210 (except in case of sickness or other unavoidable accident) shall forfeit and pay to the State five hundred dollars ($500.00), to be recovered by the Attorney General in the Superior Court of Wake County. In addition to such forfeiture, refusal or failure to vote for the candidates of the political party which nominated such elector shall constitute a resignation from the office of elector, his vote shall not be recorded, and the remaining electors shall forthwith fill such vacancy as hereinbefore provided.”

Ohio – “A presidential elector elected at a general election or appointed pursuant to section 3505.39 of the Revised Code shall, when discharging the duties enjoined upon him by the constitution or laws of the United States, cast his electoral vote for the nominees for president and vice-president of the political party which certified him to the secretary of state as a presidential elector pursuant to law.”

Oklahoma – “Every party nominee for Presidential Elector shall subscribe to an oath, stating that said nominee, if elected, will cast a ballot for the persons nominated for the offices of President and Vice President by the nominee’s party. The oath shall be notarized by a notary public and filed with the Secretary of the State Election Board no fewer than ninety (90) days prior to the General Election. Failure of any party nominee to take and file the oath by such date shall automatically vacate his or her nomination and a substitute nominee shall be selected by the state central committee of the appropriate political party. It shall be the duty of the Secretary of the State Election Board to notify the chairman of the state central committee of the failure of any nominee to file the oath. Refusal or failure to vote by a Presidential Elector for the persons nominated for the offices of President and Vice President by the nominee’s party shall constitute a violation of the oath and shall result in the immediate forfeiture of the Elector’s office. In such event, the vote shall not be recorded, a vacancy shall be declared, and the Presidential Electors present shall proceed to fill such vacancy as provided in Section 10-108 of this title.”

Oregon – “A candidate for elector when selected shall sign a pledge that, if elected, the candidate will vote in the electoral college for the candidates of the party for President and Vice President. The Secretary of State shall prescribe the form of the pledge. The party shall certify the names of the selected candidates for elector to the Secretary of State not later than the 70th day before the election of electors.”

South Carolina – “Each candidate for presidential and vice-presidential elector shall declare which candidate for president and vice-president he will vote for if elected. Those elected shall vote for the president and vice-president candidates for whom they declared. Any person selected to fill a vacancy in the electoral college shall vote for the candidates the elector whose place he is taking had declared for. The declaration shall be made to the Secretary of State on such form as he may require not later than sixty days prior to the general election for electors. No candidate for president and vice-president elector shall have his name placed on the ballot who fails to make such declaration by the prescribed time. Any elector who votes contrary to the provisions of this section shall be deemed guilty of violating the election laws of this State and upon conviction shall be punished according to law. Any registered elector shall have the right to institute proper action to require compliance with the provisions of this section. The Attorney General shall institute criminal action for any violation of the provision of this section. Provided, the executive committee of the party from which an elector of the electoral college was elected may relieve the elector from the obligation to vote for a specific candidate when, in its judgment, circumstances shall have arisen which, in the opinion of the committee, it would not be in the best interest of the State for the elector to cast his ballot for such a candidate.”

Tennessee –  “The electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as electors if both candidates are alive.”

Utah – “Any elector who casts an electoral ballot for a person not nominated by the party of which he is an elector, except in the cases of death or felony conviction of a candidate, is considered to have resigned from the office of elector, his vote may not be recorded, and the remaining electors shall appoint another person to fill the vacancy.”

Vermont – “The electors shall meet at the state house on the first Monday after the second Wednesday in December next following their election, to vote for president and vice president of the United States, agreeably to the laws of the United States. If there is a vacancy in the electoral college on that day, occasioned by death, refusal to act, neglect to attend, failure of a person elected to qualify, or for other cause, the other electors present shall at once fill such vacancy viva voce and by a plurality of votes. When all the electors appear or a vacancy therein is filled, the electors shall perform the duties required of them by the Constitution and laws of the United States. If a vacancy occurs and is filled as aforesaid, the electors shall attach to the certificate of their votes a statement showing how such a vacancy occurred and their action thereon. The electors must vote for the candidates for president and vice president who received the greatest number of votes at the general election.”

Virginia – “Electors selected by the state convention of any political party as defined in § 24.2-101 shall be required to vote for the nominees of the national convention to which the state convention elects delegates. Electors named in any petition of qualified voters as provided in § 24.2-543 shall be required to vote for the persons named for President and for Vice President in the petition.”

Washington – “In the year in which a presidential election is held, each major political party and each minor political party or independent candidate convention that nominates candidates for president and vice president of the United States shall nominate presidential electors for this state. The party or convention shall file with the secretary of state a certificate signed by the presiding officer of the convention at which the presidential electors were chosen, listing the names and addresses of the presidential electors. Each presidential elector shall execute and file with the secretary of state a pledge that, as an elector, he or she will vote for the candidates nominated by that party. The names of presidential electors shall not appear on the ballots. The votes cast for candidates for president and vice president of each political party shall be counted for the candidates for presidential electors of that political party; however, if the interstate compact entitled the “agreement among the states to elect the president by national popular vote,” as set forth in RCW 29A.56.300, governs the appointment of the presidential electors for a presidential election as provided in clause 9 of Article III of that compact, then the final appointment of presidential electors for that presidential election shall be in accordance with that compact.”

Wisconsin – “The presidential electors, when convened, shall vote by ballot for that person for president and that person for vice president who are, respectively, the candidates of the political party which nominated them under s. 8.18, the candidates whose names appeared on the nomination papers filed under s. 8.20, or the candidate or candidates who filed their names under s. 8.185 (2), except that at least one of the persons for whom the electors vote may not be an inhabitant of this state. A presidential elector is not required to vote for a candidate who is deceased at the time of the meeting.

Wyoming – “All Wyoming electors shall vote for the candidates for the office of president and vice-president receiving the highest number of votes in the Wyoming general election.”

 

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