In theUnited States Electoral College, afaithless elector is an elector who does not vote for the candidates forU.S. President andU.S. Vice President for whom the elector had pledged to vote, and instead votes for another person for one or both offices or abstains from voting. As part ofUnited States presidential elections, eachstate legislates the method by which its electors are to be selected. Many states require electors to have pledged to vote for the candidates of theirparty if appointed. The consequences of an elector voting in a way inconsistent with their pledge vary from state to state.
Electors are typically chosen andnominated by a political party or the party'spresidential nominee, and are usually party members with a reputation for high loyalty to the party and its chosen candidate. Thus, a faithless elector runs the risk of partycensure 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 toElection Day. In some states, such asIndiana, the electors are nominated inprimaries, the same way other candidates are nominated.[2] In other states, such asOklahoma,Virginia, andNorth Carolina, electors are nominated in party conventions. InPennsylvania, the campaign committee of each candidate names their candidates for elector in an attempt to discourage faithless electors. In some states, high-ranking or well-known state officials up to and includinggovernors often serve as electors whenever possible (the Constitution prohibits federal officials from acting as electors, but does not restrict state officials from doing so). 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.[citation needed]
As of the2020 election, there have been a total of 165[3][4] instances of faithlessness, 90 of which were for president, while 75 were for vice president. They have never swung an election,[4] and nearly all have voted forthird party candidates or non-candidates, as opposed to switching their support to a major opposing candidate. There were 63 faithless electors in1872 whenHorace Greeley died between Election Day and when the Electoral College convened, butUlysses S. Grant had already clinched enough to win reelection. During the1836 election, Virginia's entire 23-man electoral delegation faithlessly abstained[why?][5] from voting for victoriousDemocratic vice presidential nomineeRichard M. Johnson.[3] 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 theU.S. Senate under acontingent election. The presidential election itself was not in dispute because Virginia's electors voted for Democratic presidential nomineeMartin Van Buren as pledged. The Senate elected Johnson as vice president anyway after aparty-line vote. Uniquely,Richard Nixon always had a faithless elector in one of his state slates during his three runs for president. Oklahoma in 1960, North Carolina in 1968 and Virginia in 1972 all voted for Nixon but one elector cast a vote for another person.
TheUnited States Constitution does not specify a notion ofpledging; no federal law or constitutional statute binds an elector's vote to anything. All pledging laws originate at the state level;[6][7] theU.S. Supreme Court upheld these state laws in its 1952 rulingRay v. Blair. In 2020, the Supreme Court also ruled inChiafalo v. Washington that states are free to enforce laws that bind electors to voting for the winner of the popular vote in their state.[8]
As of 2024[update], 38states and theDistrict 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. In 14 states, votes contrary to the pledge are voided and the respective electors are replaced, and in two of these states they may also be fined. Three other states impose a penalty on faithless electors but still count their votes as cast.[1]
Colorado was the first state to void an elector's faithless vote, which occurred during the2016 election. Minnesota also invoked this law for the first time in 2016 when an elector pledged toHillary Clinton attempted to vote forBernie Sanders instead.[9] Until 2008, Minnesota's electors cast secret ballots. Although the final count would reveal the occurrence of faithless votes, it was impossible to determine which electors were faithless. After an unknown elector was faithless in 2004, Minnesota amended its law to require public balloting of the electors' votes and invalidate any vote cast for someone other than the candidate to whom the elector was pledged.[10]
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.[11]
The constitutionality of statepledge laws was confirmed by theU.S. Supreme Court in 1952 inRay v. Blair[12] 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. The court also wrote:[12]
However, even if such promises of candidates for the electoral college are legally unenforceable because violative of anassumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose [emphasis added] in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.
— U.S. Supreme Court,Ray v. Blair, 1952
The ruling held only that requiring a pledge, not a vote, was constitutional and JusticeJackson, joined by JusticeDouglas, wrote in his dissent:[12]
No one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.
In 2015, one legal scholar opined that "a state law that would thwart a federal elector’s discretion at an extraordinary time when it reasonably must be exercised would clearly violate Article II and the Twelfth Amendment".[13]
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.[14] The electors received legal assistance from the non-profit advocacy groupEqual Citizens founded byLawrence Lessig. The Colorado case,Baca v. Colorado Department of State, was initially dismissed by theUnited States District Court for the District of Colorado. On appeal, the10th Circuit ruled in August 2019 that Colorado's faithless elector law is unconstitutional.[15] 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.[16][17]
The 10th Circuit's decision conflicted with an earlier May 2019 decision by theWashington Supreme CourtIn re Guerra,[18] in which three electors who had $1,000 fines imposed on them for violating their pledges appealed the fines, which were upheld. In contrast to the Colorado case, the Washington court held that presidential electors are state officials under the control of state law and can be criminally punished by a state if they do not vote as they pledged. On October 7, 2019, these electors also appealed their case to the U.S. Supreme Court.[19][20]
On July 6, 2020, the U.S. Supreme Court ruled unanimously in bothChiafalo v. Washington andColorado Department of State v. Baca that states may enforce laws to punish faithless electors.[21][22]
Over 59 elections, 165 electors have not cast their votes forpresident orvice president as prescribed by the legislature of the state they represented.[3] Of those:
Usually, faithless electors act alone, although on occasion a faithless elector has attempted to induce other electors to change their votes in concert, usually with little if any success.
One exception was the1836 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 theU.S. Senate.
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The following is a list of all faithless electors. The number preceding each entry is the number of faithless electors in the given year's election.
3 –1788–89 election: three electors, two from Maryland and one from Virginia, did not vote[a]
3 –1792 election: three electors, two from Maryland and one from Vermont, did not vote
19 –1796 election:Samuel Miles, an elector from Pennsylvania, was pledged to vote forFederalist presidential candidateJohn Adams, but voted forDemocratic-Republican candidate Thomas Jefferson. He cast his other vote as pledged forThomas Pinckney; there was no provision at the time for specifying president or vice president. An additional 18 electors voted for Adams as pledged, but refused to vote for Pinckney.[23] 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. This was the only time in U.S. history that the president and vice president have been from different parties, except for1864 (although in that year, while the president and the vice presidential running mate were from different parties, they ran on one ticket from the same third party), and the only time the winners were from different tickets.
6 –1808 election: Six electors from New York were pledged to vote forDemocratic-RepublicanJames Madison for president and former New York governorGeorge Clinton for vice president. Instead, they voted for Clinton for president, with three voting for Madison for vice president and the other three voting forJames Monroe for vice president.[3]
3 –1812 election: Three electors pledged to vote forFederalist vice-presidential candidateJared Ingersoll instead voted forElbridge Gerry.[3]
1 –1820 election:William Plumer was pledged to vote forDemocratic-Republican presidential candidateJames Monroe, who was not contested for re-election, but he instead cast his vote forJohn Quincy Adams, who was not a candidate in the election. Some historians[who?] contend Plumer wanted George Washington to be the only unanimous selection, or that he wanted to draw attention to his friend Adams as a potential candidate. These claims are disputed.[24] Plumer also cast his vice-presidential vote for Richard Rush, not Daniel D. Tompkins as pledged.
7 –1828 election: Seven of the nine electors from Georgia refused to vote for vice-presidential candidateJohn C. Calhoun; they instead cast their vice-presidential votes forWilliam Smith.[3]
30 –1832 election: All 30 electors from Pennsylvania refused to vote for the Democratic vice-presidential candidate,Martin Van Buren, voting instead forWilliam Wilkins.[3]
23 –1836 election: The 23 electors from Virginia were pledged to vote forDemocratic candidatesMartin Van Buren for president andRichard M. Johnson for vice president. However, they refused to vote for Johnson because of his open liaison with an enslaved woman and voted instead for SenatorWilliam Smith of South Carolina, which left Johnson with 147 electoral votes, one short of a majority. Johnson was subsequently elected vice president after acontingent election in theSenate.
1 –1840 election: One elector fromVirginia, Arthur Smith ofIsle of Wight County, was pledged to vote forDemocratic candidatesMartin Van Buren for presidentandRichard M. Johnson for vice president[citation needed]; however, he voted forJames K. Polk for vice president.[25][26][27][clarification needed][better source needed]
1 –1864 election: A Nevada elector was snowbound and therefore prevented from casting any ballots.[28][29][30][31][32]
63 –1872 election:Horace Greeley, the Liberal Republican/Democrat presidential nominee, died on November 29 shortly before the Electoral College vote in December. Three electors voted for the deceased Greeley as pledged, while the other 63 electors pledged to Greeley voted for other people, with 42 voting for non-candidateThomas A. Hendricks, 18 voting for Greeley's running mate,Benjamin Gratz Brown, 2 voting for non-candidateCharles J. Jenkins, and 1 voting for non-candidateDavid Davis. The three posthumous presidential votes cast for Greeley were rejected by Congress.[33]
27 –1896 election: The Democratic Party and thePeople's Party both ranWilliam Jennings Bryan as their presidential candidate, but ran different candidates for vice president: the Democratic Party nominatedArthur Sewall and the People's Party nominatedThomas 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 Sewall.[34]
8 –1912 election: theRepublican vice-presidential candidate,James S. Sherman, died six days before the popular election. The Republicans had won only two states, Utah and Vermont, andNicholas 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.[3]
1 –1948 election: Tennessee ElectorPreston Parks was a candidate to be an elector for both the Democratic Party presidential candidate,Harry S. Truman, and theStates' Rights Democratic Party presidential candidate,Strom Thurmond. Though the national Democratic Party won the election, Parks had actively campaigned for Thurmond and he voted for Thurmond and his running mateFielding L. Wright.[24]
1 –1956 election: Alabama ElectorW. F. Turner, pledged for DemocratsAdlai Stevenson andEstes Kefauver, cast his votes for JudgeWalter Burgwyn Jones andHerman Talmadge, the formerGovernor of Georgia.[24]
1 –1960 election: Oklahoma ElectorHenry D. Irwin, pledged for RepublicansRichard Nixon andHenry Cabot Lodge Jr., contacted the other 219 Republican electors to convince them to cast presidential electoral votes for Democratic non-candidateHarry F. Byrd and vice-presidential electoral votes for RepublicanBarry Goldwater. Most replied they had a moral obligation to vote for Nixon and Lodge, while Irwin voted for Byrd and Goldwater. Fourteenunpledged electors (eight from Mississippi and six from Alabama) also voted for Byrd for president, but supportedStrom Thurmond for vice president – since they were not pledged to anyone, their action was not faithless.[24]
1 –1968 election: North Carolina ElectorLloyd W. Bailey, pledged for RepublicansRichard Nixon andSpiro Agnew, cast his votes forAmerican Independent Party candidatesGeorge Wallace andCurtis LeMay. Bailey later stated at a Senate hearing that he would have voted for Nixon and Agnew if his vote would have altered the outcome of the election.[35]
1 –1972 election: Virginia ElectorRoger MacBride, pledged for RepublicansRichard Nixon andSpiro Agnew, cast his electoral votes forLibertarian candidatesJohn Hospers andTonie Nathan. MacBride's vice-presidential vote for Nathan was the first electoral vote cast for a woman in U.S. history.[36]
1 –1976 election: Washington ElectorMike Padden, pledged for RepublicansGerald Ford andBob Dole, cast his presidential electoral vote forRonald Reagan, who had challenged Ford for the Republican nomination. He cast his vice presidential vote, as pledged, for Dole.[37]
1 –1988 election: West Virginia ElectorMargarette Leach, pledged for DemocratsMichael Dukakis andLloyd Bentsen, instead cast her votes for the candidates in the reverse of their positions on the national ticket as a form of protest against the winner-take-all custom of the Electoral College; her presidential vote went to Bentsen and her vice-presidential vote to Dukakis.[38]
1 –2000 election: Washington, D.C. ElectorBarbara Lett-Simmons, pledged for DemocratsAl Gore andJoe Lieberman, cast no electoral votes as a protest ofWashington D.C.'s lack of voting congressional representation.[39] Lett-Simmons's electoral college abstention, the first since1864, was intended to protest what Lett-Simmons referred to as the federal district's "colonial status".[39] Lett-Simmons described her blank ballot as an act ofcivil disobedience, not an act of a faithless elector; Lett-Simmons supported Gore and Lieberman and would have voted for Gore and Lieberman if she had thought they had a chance to win.[39]
1 –2004 election: An anonymous Minnesota elector, pledged for DemocratsJohn Kerry andJohn Edwards, cast their presidential vote for"John Ewards" [sic],[40] rather than Kerry, presumably by accident.[41] All of Minnesota's electors cast their vice presidential ballots forJohn Edwards, including the elector who cast the anomalous presidential vote. Minnesota's electors cast secret ballots, so the identity of the faithless elector is not known. 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.[42][10]
10 –2016 election:
In addition, three other electors attempted to vote against their pledges but had their votes invalidated:
in 1836...the Virginia electors abstained rather than vote for Democratic vice presidential nominee Richard Johnson
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. Jas. K. Polk of Tennessee.
Even though Bensten sought the vice presidency, Margarette Leach of West Virginia voted for him to protest the Electoral College's winner-take-all custom.
But it was Mr. Gore who suffered an erosion today. Lett-Simmons, a Gore elector from the District of Columbia, left her ballot blank to protest what she called the capital's 'colonial status' – its lack of a voting representative in Congress.
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