Are Rogue Electors Illegal

James Lee
• Monday, 14 December, 2020
• 14 min read

But it was a win for state election officials who feared that empowering rogue electors would cause chaos. The November general election is not actually a direct vote for the presidential candidates.

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(Source: www.alipac.us)


Voters instead choose a slate of electors appointed in their states by the political parties. Those electors meet in December to cast their ballots, which are counted during a joint session of Congress in January.

The Supreme Court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the results of the popular vote. Lessie said he hoped the controversy would encourage more states to adopt a system in which they would assign all of their electors to the candidate who wins the nationwide popular vote for president.

We spoke to Portland State University Associate Professor of Political Science Chris Short ell, who said, “although there were 7 faithless electors who cast a vote for the candidate who did not win the majority of votes in their state, this did not in any way change the outcome of the election and is quite rare. It is extremely unlikely, said Short ell, that the Electoral College will cause a changed outcome in the 2020 presidential election.

More than 37 Democratic electors would have to switch their pledged votes to change the outcome of the election. It should also be noted that 33 states and the District of Columbia have laws upheld by the Supreme Court that prohibit faithless electors.

KG can Verify: There is no precedent for the Electoral College to change the election results in Trump’s favor. 33 states and the District of Columbia have laws upheld by the Supreme Court that prohibit rogue electors.

(Source: www.dailyrecord.co.uk)

Turnout is light, but only because the Covid-19 pandemic has led tens of millions to abstain or vote by absentee ballot. But shortly after midnight, the major networks announce that Joe Biden has eked out the narrowest of victories, with the former vice-president winning 271 electoral college votes to Trump’s 267.

That is the day on which electors across the nation meet in their respective state capitals and officially cast their votes. In Colorado, a state Hillary Clinton handily won, three Democratic electors sought to vote for the Ohio governor John Kasich as part of a long-shot effort to find a consensus alternative to Donald Trump.

First, that constitutional text, history and structure manifestly support the proposition that electors were meant to vote freely. Elmbridge Gerry, who decades later than governor of Massachusetts would carve a congressional district into the shape of a salamander and so bequeath us the term “gerrymander”, warned of the “ignorance of the people”, fearing they would be “too little informed of personal characteristics in larger districts and liable of deceptions”.

So the framers settled on an electoral college, to be composed of persons of higher political standing, capable of exercising informed choice and reasoned deliberation. In Federalist No 68, Alexander Hamilton argued that entrusting the task to such men “affords a moral certainty, 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”.

That's when the 538 actual people who make up the Electoral College will meet in state capitals across the country and cast their votes for president. As states were projected on election night last month, states were called for Trump or Clinton -- but voters across the country were really voting for electors who had promised to vote for Trump or Clinton in a process called the Electoral College.

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(Source: www.bbc.co.uk)

The first candidate to reach 270 electoral votes is declared the winner of the presidential election. The 538 electors chosen by voters on Election Day will meet in their respective state capitals on Monday, Dec. 19, to cast their votes for president and vice president.

These laws have remained largely unchallenged in American courts and experts debate whether they are constitutional. The most recent instance came in 2004, when an elector from Minnesota cast their presidential ballot for Democratic vice-presidential nominee John Edwards.

A group of 30 electors in Pennsylvania refused to vote for Martin Van Buren for vice president and a group of 23 electors in Virginia refused to vote for Richard Johnson for vice president. More than three dozen electors would need to defect from Trump in order to deadlock the Electoral College -- an extraordinary number that would mark the most rogue electors in American history absent a candidate’s death.

Christopher Sup run, one of the Republican members of the Electoral College from Texas, says he will not vote for Trump in a New York Times opinion piece out on Monday. “I am asked to cast a vote on Dec. 19 for someone who shows daily he is not qualified for the office,” he wrote.

Trump lacks the foreign policy experience and demeanor needed to be commander-in-chief,” he writes, suggesting unifying around another Republican, such as Ohio Gov. A handful of Democratic electors in that group say they are willing to support a different Republican for president.

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(Source: motherboard.vice.com)

“The process of election affords a moral certainty, 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,” he wrote. Assuming no candidate reaches 270 electoral votes, the election would get thrown to the U.S. House of Representatives with the top three electoral vote getters -- likely Trump, Clinton and another candidate.

Faithless elector laws by state Vote voided with penalty As part of the United States presidential elections, each state selects the method by which its electors are to be selected, which in modern times has been based on a popular vote in most states, and generally requires its electors to have pledged to vote for the candidates of their party if appointed.

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 electors are nominated by state political parties in the months prior to Election Day.

In other states, such as Oklahoma, Virginia, and North Carolina, electors are nominated in party conventions. The parties have generally been successful in keeping their electors faithful, leaving out the rare cases in which a candidate died before the elector was able to cast a vote.

Up to and including the 2020 election, there have been a total of 165 instances of faithlessness. They have never swung an election, and nearly all have voted for third party candidates or non-candidates, as opposed to switching their support to a major opposing candidate.

(Source: www.goodreads.com)

There were 63 faithless electors in 1872 when Horace Greeley died between Election Day and when the Electoral College convened, but Ulysses S. Grant had already clinched enough to win reelection. During the 1836 election, Virginia's entire 23-man electoral delegation faithlessly abstained from voting for victorious Democratic vice presidential nominee Richard M. Johnson.

The loss of Virginia's support caused Johnson to fall one electoral vote short of a majority, causing the vice-presidential race to be thrown into the U.S. Senate under a contingent election. The presidential election itself was not in dispute because Virginia's electors voted for Democratic presidential nominee Martin Van Buren as pledged.

The Senate elected Johnson as vice president anyway after a party-line vote. The United States Constitution does not specify a notion of pledging ; no federal law or constitutional statute binds an elector's vote to anything.

All pledging laws originate at the state level; the U.S. Supreme Court upheld these state laws in its 1952 ruling Ray v. Blair. In 2020, the Supreme Court also ruled in Chicago v. Washington that states are free to enforce laws that bind electors to voting for the winner of the popular vote in their state.

As of 2020 , 33 states and the District of Columbia have laws that require electors to vote for the candidates for whom they pledged to vote, though in half of these jurisdictions there is no enforcement mechanism. Three other states impose a penalty on faithless electors but still count their votes as cast.

Colorado was the first state to void an elector's faithless vote, which occurred during the 2016 election. Minnesota also invoked this law for the first time in 2016 when an elector pledged to Hillary Clinton attempted to vote for Bernie Sanders instead.

Until 2008, Minnesota's electors cast secret ballots. Washington became the first state to fine faithless electors after the 2016 election, in the wake of that state having four faithless elector votes.

In 2019, the state changed its law for future elections, to void faithless votes and replace the respective electors instead of fining them. The constitutionality of state pledge laws was confirmed by the U.S. 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. However, even if such promises of candidates for the electoral college are legally unenforceable because violation of assumed constitutional freedom of the elector under the Constitution, Art.

After the 2016 election, electors who attempted to switch their votes in Washington and Colorado were subjected to enforcement of their state's faithless elector laws. The four faithless electors from Washington were each fined $1,000 for breaking their pledge.

The electors received legal assistance from the non-profit advocacy group Equal Citizens founded by Lawrence Lessie. On appeal, the 10th Circuit ruled in August 2019 that Colorado's faithless elector law is unconstitutional.

Specifically, the opinion held that electors have a constitutional right to vote for the presidential candidate of their choice and are not bound by any prior pledges they may have made. The opinion said the act of voting for president in the electoral college is a federal function not subject to state law and state laws requiring electors to vote only for the candidates they pledged are unconstitutional and unenforceable.

On October 16, 2019, Colorado appealed the 10th Circuit's decision to the U.S. Supreme Court. The 10th Circuit's decision conflicted with an earlier May 2019 decision by the Washington Supreme Court In re Guerra, in which three electors who had $1000 fines imposed on them for violating their pledges appealed the fines, which were upheld.

On October 7, 2019, these electors also appealed their case to the U.S. Supreme Court. On July 6, 2021, the U.S. Supreme Court ruled unanimously in both Chicago v. Washington and Colorado Department of State v. Back that states may enforce laws to punish faithless electors.

1 elector chose to abstain from voting for any candidate (in 2000). One exception was the 1836 election, in which all 23 Virginia electors acted together, altering the outcome of the electoral college vote but failing to change the outcome of the overall election.

The Democratic ticket won states with 170 of the 294 electoral votes, but the 23 Virginia electors abstained in the vote for vice president, meaning the Democratic nominee, Richard M. Johnson, received 147 votes or exactly half of the electoral college (one short of being elected). Johnson was subsequently elected vice president by the U.S. Senate.

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. This was an attempt to foil Alexander Hamilton's rumored plan to elect Pinckney as president, and this resulted in the unintended outcome that Adams' opponent, Jefferson, was elected vice president instead of Adams' running mate, Pinckney.

After the 1800 election resulted in a deadlock, the Twelfth Amendment was ratified in 1804. It changed the election procedure so that instead of casting two votes of the same type, electors would make an explicit choice for president and vice president.

1 – 1820 election : William Plume was pledged to vote for Democratic-Republican presidential candidate James Monroe, who was not contested for re-election, but he instead cast his vote for John Quincy Adams, who was not a candidate in the election. Some historians contend Plume wanted George Washington to be the only unanimous selection, or that he wanted to draw attention to his friend Adams as a potential candidate.

Plume also cast his vice-presidential vote for Richard Rush, not Daniel D. Tompkins as pledged. 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 refused to vote for Johnson because of his open liaison with a slave mistress and voted instead for Senator William Smith of South Carolina, which left Johnson with 147 electoral votes, one short of a majority. 63 – 1872 election : Horace Greeley, the Liberal Republican/Democrat nominee, died on November 29 shortly before the Electoral College vote in December.

The three posthumous presidential votes cast for Greeley were rejected by Congress. 27 – 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 Seawall and the People’s Party nominated Thomas E. Watson.

Although the Populist ticket did not win the popular vote in any state, 27 Democratic electors cast their vice-presidential vote for Watson instead of Seawall. The Republicans had won only two states, Utah and Vermont, and Nicholas M. Butler was hastily designated to receive the eight electoral votes that were pledged to Sherman.

All eight Republican electors accordingly voted for Butler for vice president. 1 – 1960 election : Oklahoma Elector Henry D. Irwin, pledged for Republicans Richard Nixon and Henry Cabot Lodge, Jr., contacted the other 218 Republican electors to convince them to cast presidential electoral votes for Democratic non-candidate Harry F. Byrd and vice-presidential electoral votes for Republican Barry Goldwater.

All of Minnesota's electors cast their vice presidential ballots for John Edwards, including the elector who cast the anomalous presidential vote. 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.

A Minnesota Democratic-Farmer-Labor Party elector tried to do the same but was replaced by one who cast a vote for Clinton. Encyclopedia of American Political Parties and Elections.

Retrieved November 15, 2016. In 1836...the Virginia electors abstained rather than vote for Democratic vice presidential nominee Richard Johnson ^ Opens haw, Pamela Romney (2014). Promises Of The Constitution: Yesterday Today Tomorrow.

The Indispensable Electoral College: How the Founders' Plan Saves Our Country from Mob Rule. ^ “Justices rule states can bind presidential electors votes”.

^ “Minnesota electors align for Clinton; one replaced after voting for Sanders”. ^ Uniform Faithful Presidential Electors Act, Washington State Legislature, July 28, 2019.

“Colorado's presidential electors don't have to vote for candidate who wins the state, federal appeals court rules”. “Colorado asks U.S. Supreme Court to overturn decision allowing presidential electors to vote for whomever they want”.

^ “Electoral College voters can be forced to abide by state popular vote, Supreme Court says”. The Electors meanwhile held a meeting, and decided that their constituents would be best satisfied, under the circumstances, by their voting for Col. R. M. Johnson for Vice President.

Accordingly, on the 2d their 23 votes were cast for Martin Van Buren as President, 22 for Col. R. M. Johnson as Vice President and 1 (Arthur Smith of Isle of Wight) for Gov. LIX, December 5, 1840, page 217 ^ “1840 Presidential Election”.

^ “Nevada Presidential Election Voting History”. ^ Handbook of the United States of America: And Guide to Emigration; Giving the Latest and Most Complete Statistics ... G. Watson.

^ United States Congressional serial set. CS1 main: archived copy as title (link) ^ “Senate and House Secured; Republican control in the next Congress assured.

^ “Vote for Edwards instead of Kerry shocks Minnesota electors ". CS1 main: bot: original URL status unknown (link) ^ “MPR: Minnesota elector gives Edwards a vote; Kerry gets other nine”.

^ “Four Washington state electors break ranks and don't vote for Clinton”. “All but 2 Texas members of the Electoral College choose Donald Trump”.

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