9.37 Myth about Out-of-State Presidential Electors

Tara Ross discussed a hypothetical third-party candidacy of Texas Congressman Ron Paul when the Vermont legislature was debating the National Popular Vote bill:

“Vermont probably did not nominate a slate of electors for Paul because he was not on its ballot. NPV’s compact offers a solution, but it is doubtful that voters in Vermont will like it. Paul would be entitled to personally appoint the three electors who will represent Vermont in the Electoral College vote. In all likelihood, he would select Texans to represent Vermont.”[624]

Ross is referring to a back-up provision in the National Popular Vote compact that provides a procedure to fill a vacancy in the unlikely situation that a particular political party in a particular state fails to nominate the exact number of presidential electors to which it is entitled in a particular state.

The seventh clause of Article III of the compact provides:

“If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.”

This back-up procedure is modeled after the method of nominating presidential electors that is routinely used today in Pennsylvania in all of its presidential elections. Under Section 2878 of the Pennsylvania election code, each presidential nominee directly nominates the presidential electors who will run in association with the nominee’s presidential slate in Pennsylvania. Section 6.3.2 contains a more detailed discussion.

It is, of course, unlikely that a third-party presidential candidate (such as Ron Paul) could win the national popular vote without being on the ballot in all 50 states. Serious candidates for President qualify for the ballot in all 50 states. Ross Perot was on the ballot in all 50 states in both 1992 and 1996. John Anderson was on the ballot in all 50 states in 1980. The Libertarian Party got its presidential nominee on the ballot in all 50 states in 1980, 1992, and 1996. Lenora Fulani, the nominee of the New Alliance Party, was on ballot in all 50 states in 1988. Ralph Nader (who received only about ½% of the national popular vote in 2008) was on the ballot in 45 states.

It is especially unlikely that a third-party candidate would fail to get the 1,000 signatures required to get on the ballot in Vermont (which, like most small states, has especially low requirements for ballot access).

In the unlikely event that a third-party candidate wins the Presidency without being on the ballot in all 50 states, that President-Elect would not want to begin his Presidency by gratuitously offending Vermont by appointing Texans as his choices for the position of presidential elector in Vermont. President-Elect Ron Paul could—and certainly would—find three supporters in Vermont to serve as his presidential electors in Vermont.

There is historical evidence about how real-world politicians would behave in this situation. Under existing law in Pennsylvania, every presidential candidate, in every election, directly chooses every presidential elector in Pennsylvania. Needless to say, no presidential candidate has ever chosen a Texan or any other out-of-state person for the position of presidential elector in Pennsylvania. Indeed, it would be politically preposterous for a presidential candidate to insult Pennsylvania gratuitously by naming out-of-staters for the ceremonial position of presidential elector. It would be even more preposterous for someone who had just won the national popular vote (and was about to become President and face the task of unifying the country) to insult a state gratuitously.

Moreover, if a state were to become concerned about the possibility of out-of-state presidential electors, it could simply enact legislation providing residency requirements for its presidential electors.

Finally, it should be noted that the sole job of a presidential elector—under both the current system and the National Popular Vote compact—is to appear in the state capital in mid-December and spend about 15 minutes casting his or her vote for the candidate for whom everyone expects him or her to vote. Even in the unlikely event that a third-party candidate were to win the national popular vote, were to do so without being on the ballot in every state, and then were to make politically offensive appointments to the ceremonial position of presidential elector, the practical result would still be that the National Popular Vote compact would have delivered precisely its advertised result, namely the election of the presidential candidate who received the most popular votes in all 50 states and the District of Columbia.

Footnotes