Richard Briffault: The “faithless” elector

Columbia Law Professor Richard Briffault is one of America’s leading election law scholars and lawyers. In this (so far unpublished) excerpt, he addresses the idea of the “faithless” elector—an elector who votes in a way different from how his or her vote was pledged. Please feel free to add other citations or corrections as notes.
A. The Presumption of Elector Independence and the Emergence of Partisanship

At the Philadelphia Convention, the creation of the Electoral College mechanism was a last minute solution to the knotty problem of how to select a president. Selection by Congress, as some proposed, was seen as likely to make the president too dependent on Congress. Popular election, as proposed by others, presented a host of difficulties: suffrage requirements differed significantly across the states; a national vote would minimize the voice of the small states; a national vote would also reduce the role of the southern states where much of the population consisted of slaves who could not vote; and the logistical difficulties of a national campaign in an era of relatively limited transportation and communications links across the states would have been enormous.

The Electoral College maintained the federal principle; boosted the small states (who are given the two extra votes based on their Senate representation); and aided the southern states (whose representation in the House was increased beyond their popular voting strength by the three-fifths clause). But because it was expected that the electors would be elected within their states either by the voters or by elected state legislators, this would provide the people with a voice in selecting the president. Using a specially created entity, that exists solely for the purpose of electing a president, was seen as eliminating the danger that the President would be dependent on another branch of government or, as Hamilton put it in Federalist #68, “on any pre-existing bodies of men who might be tampered with beforehand to prostitute their votes.” “Their transient existence and their detached situation” would also make the Electoral College less subject to corruption.

The Electoral College was seen as increasing the likelihood of a selection on the merits rather than one driven by the self-interest of those with the power to choose. By barring members of Congress and persons holding a place of trust or profit under the United States from serving as electors, the Constitution sought to promote the independence of the electors. Hamilton also argued that having the electors meet in their separate states promoted their independence:

And as the electors chosen in each state, are to assemble and vote in the state in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened in one time, in one place.

To what extent were the electors expected to follow the views of the people who elected them?

There is no doubt that the electors were supposed to speak for “the people themselves.” But popular opinion was supposed to be refined through the medium of the electors. As Hamilton put it, they would be:

men most capable of analyzing the qualities adapted to the station [of president], and acting under circumstances favorable to deliberation and to a judicious combination of all the reasons and inducements, which were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.

Most scholarly opinion agrees that as envisioned by the Framers the electors were supposed to exercise their independent judgment, albeit perhaps with some attention to the will of the people.

In practice, however, the role of the electors quickly changed with the unanticipated but rapid emergence of political parties. The election of 1796 — only the third presidential election and the first without George Washington as a candidate — was marked by intense partisan conflict. In an often-cited anecdote, one Federalist voter is said to have complained when a Federalist elector elected from Pennsylvania voted for Thomas Jefferson instead of John Adams:

Do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chuse him to act, not to think.

It was the strict partisan voting of the Democratic-Republican electors in 1800 that threw the election into the House of Representatives, and led to the adoption of the Twelfth Amendment. In 1802, a member of Congress observed in the debate concerning the Twelfth Amendment that

[w]ise and virtuous as were the members of the Convention, experience has shown that . . . the people do not elect a person for an elector who, they know, does not intend to vote for a particular person as President.

In 1826, a Senate report conclude that

[e]lectors . . . have not answered the design of their institution. They are not the independent body and superior characters they were intended to be. They are not left to the exercise of their own judgment: on the contrary, they give their vote or bind themselves to give it, according to the will of their constituents. They have degenerated into mere agents.

Today, voters are, as a practical matter, voting for presidential and vice-presidential candidates. At least forty-two states and the District of Columbia do not place the names of the electors on the ballot. Instead, the ballot either reads in small print “electors pledged to [or supporting]” the large print names of the candidates, or do not refer to the electors at all. And even the states that do list the electors, list them in brackets in small print below the large print candidate names. Does the practical evolution of electors from independent decision-makers to de facto agents of the voters who elect them to vote for named candidates have legal consequences? Does this mean that electors have lost the right to exercise independent judgment?

A handful of commentators have made the argument. The eminent scholar Charles Black argued that the electors are bound as a matter of contract law under a theory of express or implied estoppel. Having presented themselves to the voters as committed to a candidate, they should be held to their promise. Others have presented arguments based on public duty, breach of trust, or the rights of the voters. These arguments have received little judicial recognition, let alone acceptance.

The closest any court has come to finding that an elector has a legally enforceable duty to vote for the candidate he had committed to support on the ballot is Thomas v. Cohen, a lower New York state court decision which involved a voter’s challenge to the constitutionality of putting only the names of the presidential and vice presidential candidates on the voting machines, not the electors. The voter argued that since he was voting for electors who would be free to exercise discretion he had a right to know for whom he was voting.

In the course of rejecting that claim, the court addressed the role of electors. Noting that although the Framers had intended for the electors to use their own judgment, the court determined that over time the electors had come under a legal obligation to vote for their parties’ nominee: “So sacred and compelling is that obligation upon them, so long has its observance been recognized by faithful performance, so unexpected and destructive of order in our land would be its violation” that the electors are now under a “bounden duty — as binding upon them as if written into organic law” to vote for the candidate of the party that nominated them. Indeed, the judge concluded that “in my opinion” an elector “who attempted to disregard that duty” could be “required by mandamus to carry out the mandate of the voters to the state.”

That comment was, of course, dictum, and as one commentator noted “Thomas v. Cohen stands almost alone.” In 1948, the Ohio Supreme Court, in a case also dealing with the listing of electors on the ballot, articulated the opposite position, that each of Ohio’s

electors may vote as he pleases for any person eligible for the office of president or vice-president of the United States. It is only by force of a moral obligation, not a legal one, that the presidential electors pledged to certain candidacies fulfill their pledges after election.
B. Binding the Electors

If the electors are not legally bound by custom and longstanding practice to vote for the candidate in whose name they are elected, can they be legally so bound by their states?

By one recent count, 27 states and the District of Columbia purport to bind their electors. These state laws take a variety of forms. A small number of states require candidates for elector to pledge to vote for the candidate of their party or the candidate whom they are listed on the ballot as supporting. The laws of a larger group of states provide that the electors “shall” vote for the party that nominated them or the candidate in whose name they are elected. Five states direct that the electors shall vote for the candidate who received the most votes in the state or district in the presidential election. (Two of the five states that use the top vote-getter requirement are Maine and Nebraska, which allocate votes by congressional district in addition to the two at-large electors who are awarded to the state-wide winner.)

These five states also differ as to how they enforce the commitment. Three states — New Mexico, Oklahoma, and South Carolina — impose criminal penalties, and Washington authorizes a civil fine of up to $1000. At least eight states provide that voting for a candidate other than the one to whom the elector is legally bound will be treated as resignation as elector, non-recordation of the vote, and replacement by an elector chosen by the other electors. This group includes the four states — Minnesota, Montana, Nebraska, and Nevada — that enacted the Uniform Faithless Presidential Elector Act (“UFPEA”), proposed in 2010 by the National Conference of Commissioners of Uniform State Laws, which specifically provides that each elector pledge to vote “for the nominees . . . of the party that nominated me.” After marking his or her ballot, the elector is required to present it to the Secretary of State for the state or other state official for inspection for compliance with the pledge. If the elector has violated the pledge, the Secretary of State “may not accept and may not count” the ballot; the elector is treated as vacating the office of elector; a replacement elected who is required to make the statutory pledge is appointed, and that elector then must vote as pledged.

C. The Constitutionality of Binding the Electors

Are these state laws constitutional? Can an elector be compelled to vote a certain way on pain of a fine or forfeiture of his or her position?

That question has never been addressed. Indeed, it does not appear that a fine has ever been imposed, that an elector’s vote has ever been non-recorded because of the identity of the candidate voted for, or that an elector has been deemed to have resigned for that reason. The closest the courts have come to addressing this issue is the decision of the Supreme Court in 1952 in Ray v. Blair.

Ray dealt with Edmund Blair, a candidate for presidential elector in the 1952 Alabama Democratic primary who refused to sign the pledge required by the executive committee of the state Democratic Party of all party candidates to “aid and support” the nominees of the National Convention of the Democratic Party for President and Vice-President. The executive committee was authorized to require such a pledge by state law. As a result of Blair’s refusal to so pledge, the chairman of the executive committee refused to certify him as a candidate. Blair brought suit, seeking a writ of mandamus to compel the placement of his name on the ballot. He contended that the pledge requirement was inconsistent with the intention of the Framers that the electors “should exercise their judgment” and thus “interfere[d] with the performance of th[eir] constitutional duty to select the proper persons to head the Nation, according to the best judgment of the elector.” The Alabama Supreme Court agreed with him but the United States Supreme Court, in a 5–2 vote, reversed.

Writing for the majority, Justice Reed observed

[h]istory teaches that the electors were expected to support the party nominee. Experts in the history of government recognize the longstanding practice. . . . This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weights heavily in considering the constitutionality of a pledge, such as the one here required.

The court emphasized the authority of both the state, under the Twelfth Amendment, and the party to require such a pledge: “A candidacy in the primary is a voluntary act of the applicant. He . . . must comply with the rules of the party.” But although the majority found there was nothing unconstitutional in requiring an elector to pledge his support to the party nominee, the Court stopped short of saying that an elector could be compelled to honor such a pledge or otherwise be bound. The key sentence in the opinion is:

even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, s 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.

Justice Jackson, joined by Justice Douglas, dissented. They acknowledged that the “plan originally contemplated” by the framers “that electors would be free agents to exercise and independent and nonpartisan judgment” had “miscarried.” “Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities.” Nonetheless, the freedom of the electors to use their independent judgment is constitutionally protected. Treating the pledge requirement as an effort by the state “to achieve control of the electors’ ballots” the dissenters concluded that would be unconstitutional. “[T]he[ir] balloting cannot be constitutionally subjected to any such control because it was intended to be free, an act performed after all the functions of the electoral process left to the States have been completed.” Although “this law does no more than to make a legal obligation of what has been a voluntary general practice,” the state lacked the power to do that: “A political practice which has its origin in custom must rely upon custom for its sanctions.”

Ray v. Blair is ultimately inconclusive on the question of whether a state’s law seeking to limit elector discretion can be enforced against a faithless elector. In particular, it did not address what may be the most significant issue with respect to enforceability — the Constitution’s requirement that the electors “vote by ballot.” As previously noted, most scholars assume that “vote by ballot” means vote by secret ballot. But unless an elector announces his or her intention beforehand to vote for someone other than the candidate on whose slate the elector ran, it will be impossible to know whether the elector has been faithless until after the votes have been cast.

The UFPEA states and some other states with similar rules seek to overcome this difficulty by requiring that the Secretary of State examine the ballots before recording them. But if the requirement in Article II and the Twelfth Amendment that electors vote by ballot means vote by secret ballot, that requirement is unconstitutional. Suffice it to say, this issue has never been tested. To be sure, it appears that the practice in many states is to have non-secret oral voting. The laws of at least one state (Colorado) specifically call for vote by “open ballot.” But this practice may very well be unconstitutional.

D. Congress and the Faithless Elector

There have been “faithless electors” in nine of the last seventeen presidential elections—1948, 1956, 1960, 1968, 1972, 1976, 1988, 2000, and 2004.

In 1969, for the first and so far only time, Congress considered whether to reject the vote of a faithless elector as not “regularly given” within the meaning of the Electoral Count Act. In 1968, Richard Nixon carried the state of North Carolina and its electoral votes. One Nixon elector, Dr. Lloyd Bailey, however, cast his electoral vote for George Wallace. When the North Carolina results were read before the Senate and House on January 6, 1969, six senators and thirty-seven members of the House, led by Senator Muskie and Rep. O’Hara, respectively, with support from other members of both chambers, objected on the grounds that an elector is obligated to vote for the candidate on whose slate he ran, so that the vote was not regularly given. It appears that initially Muskie and O’Hara planned to argue that the Bailey vote should not simply be disregarded but actually recorded as cast for Nixon, but thinking it was unlikely that both houses of Congress would go that far, they sought only to have the vote not counted. The measure was debated in both chambers for two hours as provided by the ECA. Proponents of the objection argued variously in terms of the elector’s fiduciary duty and implied obligation to the party that nominated him; the rights of the voters who elected him; and the current function of the electoral college. They noted that North Carolina was a so-called “short ballot” state which listed only the names of the presidential and vice-presidential candidates and not the electors. Those who opposed the objection and sought to have the vote count focused on the historical intent of the framers to give the electors discretion. The objection was rejected in both houses, but by a surprisingly narrow vote of 170–228 in the House and 33–58 in the Senate.

The Bailey case can be seen as upholding elector independence and as Congress’s recognition that it has a very limited role in counting the electoral votes, with no right to reject the ballot of a properly appointed elector. Still, its precedential significance is uncertain. Although North Carolina used the short ballot — supporting the view that the voters thought they were voting for presidential and vice-presidential candidates, not electors — there was no state law purporting to bind the electors to vote for the party that nominated them or the candidate they were listed as supporting, and the Governor had certified the vote in submitting it to the President of the Senate. At least one senator during the Bailey and several commentators since then have suggested that a vote might not be “regularly given” if it violated a state law binding a candidate to support the party nominee. Thus, whether Congress may reject a “faithless” vote cast in violation of state law remains unresolved. In any event, since the Bailey incident all faithless elector votes have been accepted without resort to the Electoral Count Act’s dispute resolution procedure.

E. Litigation

The opportunities for litigation of issues concerning a faithless elector are considerable, with the outcome of most such litigation highly unpredictable. These possible suits could be divided by time — before and after the electors vote; by state — those with versus those without a binding pledge law; and, within the latter category, according to the remedy state law provides.

The most plausible case would be one (i) triggered in a state with a law purporting to bind the electors (ii) if one or more electors declare before the electoral vote day that they intend to vote for someone other than the candidate to whom the law commits them. There would be a question of who has standing to sue, but it is possible that either someone who voted for the elector, a candidate injured by the elector’s announced voting switch, or even the attorney general of the state would be found to have standing. The elector’s announcement of intent to violate the state pledge law would make the case ripe for adjudication. The existence of a state law on the books would give a state court jurisdiction. Such a suit raises the question of it would be justiciable, but cases like McPherson, Ray v. Blair, and Bush v. Gore indicate that at least some issues involving the Electoral College are justiciable. In those states that merely purport to bind the elector but don’t treat a “faithless” vote as resignation, it is unclear what the remedy would be. That is, it is unclear whether in those states, a court would treat the elector’s duty as ministerial and issue a writ of mandamus compelling the elector to vote for the pledged candidate. The remedy would surely be tied up with the court’s assessment of the merits. The elector could defend, claiming the Constitution protects her right to exercise independent judgment. Indeed, the elector could probably also bring a declaratory judgment seeking a ruling that enforcing the state pledge would violate the Constitution.

Actions against electors who have announced the intent to be faithless in states without pledge laws could also be brought but would be far less likely to succeed. Voters, candidates, and/or state officials might still be able to satisfy standing, ripeness, and justiciability requirements. Such a suit grounded on contract, fiduciary duty, or right to vote theories might survive an initial motion to dismiss, but the merits of such a claim seem weaker.

In situations where the elector does not announce a pre-voting intent to be faithless, and the faithlessness is not discovered until after the votes have been cast, recorded, and transmitted, it seems less clear whether a court action could be brought. Conceivably the faithlessness would be discovered and revealed by the other electors or the state’s secretary of state — if there was open voting when the electors voted — or the elector could announce the action afterwards. Although the same theories of elector breach of duty, breach of promise, violation of state law, or violation of voters’ rights, could be invoked, it could be argued that once the electors have voted and the votes have been certified all issues with respect to their votes are committed to Congress.

Yet another issue might arise in the UFPEA states and other states that treat a faithless vote as resignation. A faithless elector who has been deemed to have resigned could sue under the Constitution, either to block his/her replacement and certification of the replacement’s vote if the elector goes to court during the balloting process, or afterwards to block the certification and transmission of the vote to Congress or the counting of that vote in Congress. Suffice it to say it is totally unpredictable how this would come out, although, again, most likely once the vote has been certified and sent to Congress, it is unlikely a court would want to get involved.

Finally, there is the possibility of a suit brought after the casting of the electoral votes that could be brought against the President of the Senate to bar counting a vote the plaintiffs claim should not be counted. That could include a vote cast by a faithless elector or a vote cast by a replacement elector in an UFPEA state. Even more speculative but not completely out of the question could be a suit brought against the President of the Senate for not counting a vote that the two houses of Congress concurrently concluded was not regularly given. The latter would entail both an interpretation of the Electoral Count Act and a challenge to its constitutionality. There is, of course, no precedent for such a suit.