Faithless electors: what happens if they matter?


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on November 6, 2016, 9:45 pm

A new report says that a second Democratic presidential elector in Washington State, which the Democrats are predicted to win, may refuse to cast his official Electoral College vote on December 19 for Hillary Clinton—despite his pledge to do so, pursuant to Washington State law, RCWA § 29A.56.340.

 

The state statute imposes a civil fine of $1000 on any such faithless elector: “Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.” But apparently two of Washington’s twelve are willing to pay that fine in order to be what one of them calls a “conscientious elector”.

 

One or two faithless electors conceivably could make a difference this year. Here are a couple of maps that would give Clinton exactly the 270 Electoral College votes she needs, with not an extra elector to spare:

 

http://www.270towin.com/maps/PDGGQ

 

http://www.270towin.com/maps/G6DZY

 

Given the historically unprecedented unpopularity of both presidential candidates this year, I’ve been wondering whether America might actually confront the possibility of multiple faithless electors on both sides. Without trying to anticipate all the potential permutations, let’s just stick for moment with the current situation in Washington State.

 

A quick review of some constitutional basics. Article Two of the U.S. Constitution explicitly gives each state legislature the power to choose the method of appointing that state’s presidential electors:

 

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

 

The U.S. Supreme Court’s decision in Bush v. Gore confirmed this constitutional authority. Thus, although all states now appoint their presidential electors by means of the popular voting that culminates on Tuesday, November 8, each state legislature has the constitutional power to choose a different method of appointment, including by deciding to appoint its state’s electors directly. In 2000, the Florida legislature was in the midst of considering that option when Bush v. Gore, and Al Gore’s concession afterwards, mooted the point.

 

But the Constitution gives Congress the power to determine when each state shall appoint its presidential electors: “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” I understand this constitutional provision as requiring the “day” that the electors meet in their respective states to cast their official Electoral College votes for president to be uniform throughout the United States; this year that day is Monday, December 19, as specified by Congress in 3 U.S.C. § 7. Some have read the same provision as also requiring that the “time of choosing the electors” also be the same in every state. I don’t read it that way, since the Constitution uses “time” for the first step and “day” for the second, and confines the uniformity requirement to “day”. In any event, Congress has exercised its choice to “determine the time of choosing the electors” to require, as a matter of statutory law, that all states choose their electors on Tuesday, November 8. This statutory requirement is provided in 3 U.S.C. § 1: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

 

(The way this works is that each political party nominates its slate of presidential electors in each state, with the number of individuals in the state equal to the state’s number of Electoral College votes. On Tuesday, November 8, citizens see the names of the presidential candidates on the ballot, but by law they are actually voting for the slate of presidential electors nominated by the same party as the candidate that the voter chooses. The relevant provision for Washington State is RCWA 29A.56.320.)

 

Consequently, were the Washington Legislature to try to do something about the potential problem of a faithless elector, by for example providing for the appointment of different electors other than the one appointed as a result of the popular vote on November 8, it would seem necessary—pursuant to U.S.C. § 1—for the state legislature to act prior to November 8, so that this alternative method of appointment can occur on the congressionally mandated date of November 8. Thus, as a practical matter it would seem too late (as I writing this analysis late on Sunday, November 6).

 

Congress does have a separate statutory provision to cover the situation in which a state, for some reason, has failed to make its appointment of presidential electors on the mandated date (November 8). This is 3 U.S.C. § 2, and it states: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” But this language would not seem to apply to the situation of a faithless elector. The problem with a faithless elector is not failing to be appointed on November 8; it is the entirely different circumstance that the elector chooses not act in accordance with the pledge required by state law.

 

Of course, we don’t know for sure that an elector will be faithless until he or she actually casts his or her Electoral College vote on December 19. But let’s take the example of Robert Satiacum, the Democratic elector who is emphatic that he will not vote for Hillary Clinton on December 19. Assuming that there is no way to prevent his appointment as an elector (assuming the Democratic slate of electors win the popular vote in Washington State on November 8), then is there anything that can be done to replace him after December 19 with someone else who won’t be faithless? In other words, when the results of the November 8 popular vote are officially certified, Robert Satiacum will have been duly appointed to hold the office of presidential elector. But what if his announcement of his plan to violate his pledge somehow negates that appointment, thereby requiring his position to be filled with someone else?

 

Electors sometimes die and need to be replaced. Or it turns out that a duly appointed elector pursuant to a state’s popular vote is constitutionally barred from serving as a presidential elector by virtue of “holding an office of trust or profit under the United States,” and thus needs to be replaced for this reason. That situation happened in 1876, for example.

 

Washington State, like others, has a statutory provision to address this type of contingency. It’s part of RCWA 29A.56.340:

 

If there is any vacancy in the office of an elector occasioned by death, refusal to act, neglect to attend, or otherwise, the electors present shall immediately proceed to fill it by voice vote, and plurality of votes.

 

It would seem, then, the question whether the announcement of an intent to violate the pledge would constitute either “refusal to act” or an “otherwise” circumstance generating a “vacancy” entitled to be filled “immediately” by other electors. In considering this question, one must acknowledge that it’s not easy to fit the faithless elector situation into the statutory language. The idea of the “electors present” filling a “vacancy” suggests that this replacement power is limited to the situation where an elector does not show up for the Electoral College meeting, either because of death or refusal to act or neglect to attend. It doesn’t seem to apply to the situation in which a duly appointed elector does show up and is willing to pay the $1000 civil fine for breaking the pledge.

 

But someone duly appointed to be an elector, but not constitutionally qualified because of “holding an office of profit or trust under the United States” might show up for the Electoral College meeting, and the other electors still might think that the constitutional disqualification caused a “vacancy” that required an immediate replacement. Thus, maybe it doesn’t matter if Robert Satiacum shows up for the meeting; his announced plan to break his pledge might trigger a “vacancy” that requires an immediate replacement. The argument seems to me, at this moment, a stretch but not entirely implausible.

 

(Michigan, by contrast, has a statutory provision that explicitly makes being faithless to constitute a vacancy: “Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy. MI ST § 168.47.  Also, the Uniform Law Commission has created a model statute to provide, in relevant part, that a faithless elector creates a vacancy, but the ULC's website says that only four states so far have adopted this model statute: Minnesots, Montana, Nebraska, and Nevada.)

 

As a practical matter, however, I’m not sure the strength of the legal argument, based on an interpretation of the relevant Washington State statute, is what matters. Instead, it seems to me crucial whether a dispute over the faithless elector persists until January 6, 2017, when Congress meets pursuant to the Twelfth Amendment to receive the Electoral College votes of the states. Then it becomes a question of what form the dispute takes and how Congress proceeds to handle it.

 

Without attempting to get into all the potentially intricate details here, because after all this is entirely speculative at this point, a key distinction for such congressional proceedings is whether Congress has received two conflicting certificates of Electoral College votes from Washington, rather than just one. To oversimplify somewhat for purposes of this analysis, if Congress receives just one certificate, then it would take both houses of Congresses to reject the Electoral College votes from that state under 3 U.S.C. § 15—the most impenetrable statute that I’m aware of, but I think it is clear enough on this point: “no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title [3 U.S.C. § 6] from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.”

 

The real problem comes if Congress receives two conflicting sets of Electoral College votes from the same state, as happened in 1876. Thus, suppose that the other Washington State electors declared that Robert Satiacum forfeited his position by virtue of his announcement to break his pledge, and they thereby were replacing him with someone else. This replacement along with the other electors then cast all Washington’s 12 electoral votes for Clinton, and send these votes to Congress. That’s the first certificate from the state.

 

Now suppose that Robert Satiacum asserts that the other electors were not entitled to dismiss him under Washington State law, and therefore he was the only duly appointed elector who showed up for the true meeting of Washington electors—the other ones failing to show up because they were holding their meeting separately with the replacement. Robert Satiacum thereby appoints eleven other individuals to be replacements for the vacancies caused by the nonappearance of the eleven other electors. (Something exactly like this happened in Oregon in the 1876 dispute.) These Satiacum-led electors then send their separate certificate of electoral votes to Congress. This is the second certificate.

 

Now you may think that this Satiacum-led certificate is entirely dubious as a matter of Washington State law. Maybe so. But the key point is that its mere existence creates a two-certificate scenario for the purpose of the Electoral Count Act of 1887, 3 U.S.C. § 15. And figuring out what 3 U.S.C. § 15 actually requires in a two-certificate scenario is a nightmare.

 

To be sure, if both Houses of Congress agree on which of two conflicting certificates to accept, then as a practical matter the dispute is over. The electoral votes will be counted in accordance with whichever certificate the two chambers accept. If it is the certificate from the eleven-plus-replacement, and not the Satiacum-led certificate, and all of its twelve electoral votes are for Clinton, then she will get these 12 votes, and if they are enough to get her to 270, then she’s the president-elect. By contrast, however, if both Houses of Congress accept the Satiacum-led certificate, and it contains enough electoral votes for individuals other than Clinton to prevent her from reaching 270 (and not votes for Trump, which would enable him to reach 270), then neither Clinton nor Trump would have an Electoral College majority, and under the Twelfth Amendment the House of Representatives would pick the president through its special one-state-one-vote procedure.

 

The serious problem arises if the Senate and the House disagree about which of the two conflicting certificates to accept. One interpretation of 3 U.S.C. § 15 is that whichever certificate bears the seal of the Governor of Washington is the one that Congress must accept. But there are other interpretations of this impenetrable statutory language. There is also the possibility that both certificates bear the governor’s seal, as for example might happen if a court orders the governor’s seal to be affixed to a certificate that the governor has rejected.

 

(Another potential wrinkle to consider is that between November 8 and December 19, Washington State enacts a new law, modeled on Michigan’s, to make explicit that a faithless elector situation creates a vacancy requiring an immediate replacement. If this were to occur, it would be new law, presumably denying Washington the protection of the Safe Harbor provision of 3 U.S.C. § 5, pursuant to which Congress promises to follow state law regarding any dispute concerning the appointment of the state’s presidential electors—as long as that state law was on the books “prior to the date fixed for the appointment of the electors,” which is November 8. More to the point, even with the enactment of this new law, there still could be the possibility of two conflicting certificates of electoral votes sent to Congress from Washington State. Robert Satiacum and his allies might refuse to recognize the validity of this new law, and thus go about their plan to submit a second certificate to Congress. Again, the legal merits of that second certificate may be lacking, but the crucial point is what Congress does with the second certificate under 3 U.S.C. § 15.

 

For the nation’s sake, let’s hope we never get to the situation where a faithless elector has caused two separate certificates of Electoral College votes from the same state to reach Congress—and that state’s Electoral College votes are crucial to determining whether a presidential candidate reaches the magic number of 270.

 

In other words, let’s hope that after Tuesday, all this remains in the realm of unnecessary speculation.

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Edward B. Foley directs the Election Law at Moritz program. He is author of Ballot Battles: The History of Disputed Elections in the United States and the forthcoming Presidential Elections and Majority Rule. View Complete Profile

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