9.14 Myths about Faithless Presidential Electors

The Founding Fathers envisioned that the presidential electors would be outstanding citizens who would exercise independent judgment in choosing the best person to become President.

However, the Founders’ expectations were almost immediately dashed with the emergence of political parties in the nation’s first contested presidential election in 1796.

Since 1796, presidential electors have been party stalwarts nominated by their party to cast their vote in the Electoral College for their party’s nominee. That is, presidential electors are willing rubber stamps for their party’s nominee for President (section 2.5).

Faithless electors have never changed the outcome of a presidential election. There have been 24,068 electoral votes cast for President in the nation’s 59 presidential elections between 1789 and 2020.

Samuel Miles’ vote in the Electoral College for Thomas Jefferson in 1796 was the only instance when a presidential elector might have thought—at the time that he cast his vote—that his vote might affect the national outcome for President (section 3.7.7).

As the U.S. Supreme Court said in Chiafalo v. Washington:

“Faithless votes have never come close to affecting an outcome.”[368]

Nonetheless, the theoretical possibility of faithless electors exists under both the current system and the National Popular Vote Compact.[369]

To the extent that anyone believes that faithless electors are a practical problem, the U.S. Supreme Court ruled in Chiafalo v. Washington in 2020 that the states have constitutional authority to remedy it.

In fact, many states have adopted the Uniform Faithful Presidential Electors Act or versions of it—both before and since Chiafalo.

Moreover, the major political parties have been more diligent than ever (particularly since 2016) in nominating reliable presidential electors.[370]

The National Popular Vote Compact is actually superior to the current system in that it reduces the likelihood that a wayward elector would ever impact the ultimate outcome. Under the Compact, the national popular vote winner would generally receive an exaggerated margin of the votes in the Electoral College in any given presidential election. The reason is that the Compact guarantees that the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would receive at least 270 electoral votes from the states belonging to the Compact. Then, beyond that guaranteed minimum bloc of 270 electoral votes, the national popular vote winner would generally receive additional electoral votes from whichever non-compacting states he or she happened to carry (under existing statutes in those states).

For example, if the compacting states were to possess 270 electoral votes, and if the 268 electoral votes possessed by the non-compacting states were equally divided between the two major-party candidates, the national popular vote winner could receive an additional 134 electoral votes (that is, a grand total of 404 out of 538 electoral votes). The cushion created by these additional electoral votes would make it even less likely that faithless electors could affect the outcome of a presidential election.

Footnotes

In a 2022 article, William Josephson, an opponent of the National Popular Vote Compact, raised the following question based on the hypothesis that the Compact was in effect for the 2024 presidential election and that Donald Trump was a candidate:

“Assume that new NPV states are added to the existing NPV states to constitute an elector majority. Further assume that President Trump runs for President as the Republican candidate in 2024 and wins the popular vote but not an elector majority. How likely is it that electors in Blue NPV states, like California and New York, all of which probably would not have voted for President Trump, would, as required by the NPV, actually cast their elector votes for President Trump?”[371] [Emphasis added]

Josephson’s scenario is based on a total misunderstanding of how the Compact would operate.

The U.S. Constitution says:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[372]

The National Popular Compact is a state law that expresses the state’s choice as to the “manner” of appointing its presidential electors.

The Compact specifies that the winning candidates for presidential elector in each member state will be the persons who have been nominated in that state in association with the national popular vote winner.

That is, a state’s presidential electors will be from the same political party as the candidate who won the most popular votes in all 50 states and the District of Columbia.

Thus, all the presidential electors in states belonging to the Compact will be avid supporters of the national popular vote winner and will, therefore, gladly vote for that candidate.

Let’s assume that the Republican presidential nominee wins the national popular vote and that the Compact is in effect. Under the terms of the Compact, all the presidential electors from California (and all other states belonging to the Compact) would be the persons nominated by each state’s Republican Party. That is, they would all be Republican party activists. The bloc of (at least) 270 presidential electors appointed under the Compact would reflect the decision of the voters nationwide in favor of the Republican presidential nominee.

Thus, none of these 270 (or more) Republican presidential electors would be asked to vote contrary to his or her own political inclinations or conscience. Instead, each of them would vote in harmony with their own strongly held personal choice, namely the Republican presidential nominee who had just won the national popular vote.

Under the Compact, presidential electors in the member states would operate as willing rubber stamps for the nationwide choice of the voters—just as presidential electors currently act as willing rubber stamps for the statewide choice of the voters (or the district-wide choice in Maine and Nebraska).

Josephson mistakenly thinks that the presidential electors from California would be Democratic Party activists. That is not how the Compact would operate.

Footnotes

Some have suggested that, under the National Popular Vote Compact, presidential electors might, after the people vote in November, succumb to outside pressure and abandon the national popular vote winner (and instead vote in favor of the winner of the popular vote in their state).

This hypothetical scenario is based on the following incorrect assumptions:

• There is any substantial pool of people who would support the notion of changing the rules after the public has voted on Election Day.
• The public favors the current state-by-state winner-take-all system for electing the President, and hence there would be a vast pool of people to apply pressure on presidential electors.
• The presidential electors supporting the presidential candidate who had just won the national popular vote, under laws that were in place on Election Day, would care about—much less succumb to—pressure from people supporting the opposing party’s candidate.

The reality is that there would be no substantial pressure in the first place. The public simply does not favor the current state-by-state winner-take-all method for awarding electoral votes (section 9.22).

The environment in which this hypothetical scenario would arise has the following four elements:

• In polls since 1944, a substantial majority of the American people have said that they favored the idea that the presidential candidate receiving the most votes throughout the United States should win the presidency. Far from being attached to the state-by-state winner-take-all method of awarding electoral votes, the public strongly opposes it.
• The legislature of the state involved has responded to the wishes of its own voters and enacted the National Popular Vote Compact.
• States possessing a majority of the electoral votes (essentially half the population of the country) have similarly enacted the Compact, and the Compact has taken effect nationally.
• A nationwide presidential campaign has been conducted, over a period of many months, with the candidates, the media, and everyone else in the United States knowing and expecting that the winner of the national popular vote will, in accordance with laws in effect at the time, become President.

The hypothetical scenario is based on the notion that when the Electoral College meets in December, the 270 (or more) presidential electors (who are avid supporters of their own party’s presidential candidate who had just won the national popular vote) would respond to the preferences of supporters of the losing party.

In fact, there would be little inclination for party activists to vote against their own strongly held personal preferences, against their own party’s presidential nominee, against their own state’s law, and against the desires of an overwhelming majority of their state’s voters who favor a national popular vote for President.

Moreover, there is evidence from recent experience against the hypothesized scenario.

In November 2000, Al Gore won the national popular vote by a margin of 543,816 votes. However, there were 271 Republican presidential electors (just one more than the 270 needed to elect a President) who had just been selected under the laws in place at the time. None of the 271 Republican presidential electors in 2000 voted for Al Gore despite the fact that Gore had received the most popular votes nationwide and despite the fact that the American public overwhelmingly believed that the President should be the candidate who wins the national popular vote. Nonetheless, all 271 Republican presidential electors voted for their party’s nominee. They did so in accordance with the universal understanding of the system that was in effect at the time.

Similarly, in 2016, Hillary Clinton won the national popular vote by a margin of 2,868,518 votes over Donald Trump. On Election Day, 306 Republican presidential electors were elected. Although two Republican presidential electors from Texas defected from Donald Trump when the Electoral College met in December, their reason for not voting for their own party’s nominee had nothing to do with the fact that Trump did not win the most popular votes nationwide. Instead, both questioned Trump’s fitness for office and voted for a prominent Republican in lieu of Trump (section 3.7.6). Meanwhile, 304 of the 306 Republican presidential electors voted for their party’s nominee.

Shawn M. Flynn, a former special assistant U.S. attorney for the Eastern District of Virginia, wrote in the Washington Times in 2022 that the National Popular Vote Compact:

“could undermine elector voting rights since the 12th Amendment does not prohibit ‘faithless electors,’ and an interstate compact could usurp elector voting decision-making power.”[373]

Flynn is incorrect for two reasons.

First, states do have the power to control their presidential electors. The U.S. Supreme Court ruled in Chiafalo v. Washington in 2020 that:

“Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington [State] does.”[374]

Second, the National Popular Vote Compact says nothing about the decision-making power of presidential electors.

Instead, the Compact would operate on the basis of the same principles as the current system. That is, each political party would nominate passionate party activists for the ceremonial position of presidential elector under existing state laws. Each party would select its nominees for presidential elector precisely because they are avid supporters of the party’s presidential candidate and because they can be relied upon to act as willing rubber stamps for the party’s nominee.

Then, both the Compact and the current system let the states decide on whether to further regulate presidential electors.

Under both the Compact and the current system, the states are free to enact laws addressing the question of how presidential electors vote in the Electoral College, including:

• giving their presidential electors discretion as to how to vote in the Electoral College;
• telling their presidential electors how they should vote, but providing no penalty if they deviate from expectations;
• telling their presidential electors how they must vote and penalizing them if they do not vote as expected;
• telling their presidential electors how they must vote and invalidating the vote of a faithless elector during the Electoral College meeting, immediately removing the faithless elector from office, and immediately replacing the faithless elector with a compliant person.

States currently use all four approaches, as discussed in section 3.7.

Footnotes