On Monday, December 19, electors from across the country gathered to cast the official votes for president. Of the 538 votes that were tallied, seven came from faithless electors – electors who chose not to vote for the nominee who won a plurality of votes in their state. These included four Democratic electors in Washington state, two Republican electors in Texas, and one Democratic elector in Hawaii.
There were also three "would-be" faithless electors whose dissenting votes were not counted. Faithless electors in Colorado and Minnesota were replaced after their votes were cast, and in Maine, an elector who was faithless in the first round of voting cast a "proper" ballot during the second round.
Most of the faithless electors voted on principle for candidates they believed were fit for the office of the presidency.
One elector from Texas voted for libertarian Ron Paul while the other Texan joined Colorado's faithless elector in supporting Ohio governor John Kasich. In Washington, three electors voted for moderate Republican Colin Powell while the fourth voted for a Sioux woman, Faith Spotted Eagle, who has opposed the construction of the Dakota Access Pipeline. And in Hawaii, an elector voted for Sen. Bernie Sanders believing he was the most qualified candidate.
Two of the other "would-be" faithless electors offered different reasons for their roguish behavior.
In Maine, the elector who voted for Sen. Sanders in the first round said his goal was to show his supporters that their voices have not gone unheard. “The very least I can do is tell these new voters, ‘Look, somebody did listen to you,'" he said. And the faithless elector who was replaced in Minnesota said he cast his vote for Sanders to protest the state law that requires electors to vote for the candidate that won the state's popular vote on Election Day.
Nationwide, a majority of states (and the District of Columbia) have laws on the books that stipulate how electors are to vote, though their language varies. Some laws state that electors are to vote for the presidential ticket that won a plurality of votes in their state, while others state they are to vote for the presidential and vice-presidential nominees of the party that selected them as electors.
Yet most of these states have no policy in place for how to deal with faithless electors. The faithless electors in Texas and Hawaii, for instance, received no punishment for their disloyalty. In Washington state, however, each of the four electors will likely be fined $1,000. One of these electors, Bret Chiafalo, was undeterred by the fine, telling reporters, “I think we did what we thought was right."
Chiafalo was one of the founding members of the Hamilton Electors movement, which urged electors to vote their conscience and support candidates they deemed fit for office. Their name was inspired by Alexander Hamilton, whose essay in Federalist No. 68 argued that electors should act as free agents and rely on their own judgment in selecting candidates whom they believe possess the character and qualifications to serve as president.
In addition to attempting to persuade electors to break rank, some Hamilton Electors, prior to December 19, sought emergency injunctions in state and federal courts to block enforcement of laws that would punish or negate their vote. Though the courts denied them injunctive relief, judges in one ruling suggested that these laws may in fact be unconstitutional.
"This is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs’ position," wrote the three-judge panel of the 10th Circuit Court of Appeals in the case brought by two Colorado electors. "But it is not our role to make those arguments for them."
Some lawyers and legal analysts see this statement as a sign that judges in the future may be sympathetic to challenges to state laws that punish or replace faithless electors.
Defenders of these laws cite Article II, section 2, clause 2 of the Constitution, which affirms that states have the power to appoint their electors" in such Manner as the Legislature thereof may direct." They also point to the Supreme Court case of Ray v. Blair (1952), which held that political parties (and states) can refuse to certify an elector who does not make a pledge to vote for the nominees of the party he or she would represent.
However, critics of these laws argue that the Ray decision supports their position. The ruling, they point out, relates only to the certification and appointment of electors, not to how electors vote once they have been certified and appointed. Indeed, the majority opinion invokes "an assumed constitutional freedom of the elector under the Constitution, Art. II, 1, to vote as he may choose in the electoral college."
The Ohio Supreme Court made a similar statement in a 1948 case. The court wrote that an elector "may vote as he pleases for any person eligible for the office of president or vice-president of the United States." The court added, "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."
A recently published analysis of state laws that replace faithless electors, like the one in Minnesota, concluded that such laws are unconstitutional for these reasons. Not only do they subvert the intent of the framers who designed the Electoral College, the author wrote, but they also assert an authority that the Constitution does not provide to states. "The language of Article II does not authorize the state to disqualify and replace an elector once appointed," the author concluded.
Michael Stokes Paulsen, a law professor at the University of St. Thomas in Minneapolis, contests the validity of the term "faithless elector" itself.
"Constitutionally, there is no such thing as the so-called 'faithless elector.' That slanderous label is a constitutional misnomer," he writes. "Electors who exercise their individual judgment are actually being faithful to the Constitution. They are simply being unfaithful to their political parties. A better label might be 'party-defector elector' or perhaps 'faithful-constitutionalist elector.'"
As cogent as these arguments are, it is unclear how popular such defenses of the Electoral College will be.
Historically, a sizable majority of the public has supported replacing the institution. However, in the days prior to the meeting of the Electoral College, Gallup released a poll showing that 49 percent favored amending the Constitution to allow for the presidency to be decided by the popular vote, while 47 percent favored keeping the current system (up from 35 percent in 2011). The change was largely motivated by partisanship: only 19 percent of Republicans favored amending the Constitution (down from 54 percent in 2011).
Given Republican control of nearly two-thirds of state legislatures and a constitutional requirement that an amendment be ratified by three-quarters of the states, a formal amendment to replace the Electoral College seems unlikely. And while an effort is underway to have states with a majority of electors support the candidate who wins the popular vote – the National Popular Vote Interstate Compact (NPVIC) – such an agreement, if successful, would have to be approved by a majority vote in Congress. Republican control of Congress means adoption of this reform is unlikely in the near term as well.
The persistence of the Electoral College for the foreseeable future makes the potential legal challenges to state laws punishing faithless electors or negating their vote all the more significant. Whatever the outcome of those challenges, a greater focus on the role of electors – including their independence and autonomy – could drastically affect how electors vote, and whom they vote for, in subsequent presidential elections.