Are There Restrictions on Who the Electors of the Electoral College Can Vote For?

There is no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their States. Some States, however, require Electors to cast their votes according to the popular vote. These pledges fall into two categories—Electors bound by State law and those bound by pledges to political parties.

The U.S. Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some State laws provide that so-called “faithless Electors”; may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.

Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of Electors have voted as pledged. Listed are the instances of “Faithless Electors”. The number preceding each entry is the number of faithless electors for the given year.

2000 to present
1 – 2004 election: A Minnesota elector, pledged for Democrats John Kerry and John Edwards, cast his or her presidential vote for John Ewards [sic], rather than Kerry, presumably by accident. (All of Minnesota’s electors cast their vice presidential ballots for John Edwards.) Minnesota’s electors cast secret ballots, so unless one of the electors claims responsibility, it is unlikely that the identity of the faithless elector will ever be 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.

1 – 2000 election: Washington, D.C. Elector Barbara Lett-Simmons, pledged for Democrats Al Gore and Joe Lieberman, cast no electoral votes as a protest of Washington D.C.’s lack of congressional representation.

1972 to 1996
1 – 1988 election: West Virginia Elector Margarette Leach, pledged for Democrats Michael Dukakis and Lloyd Bentsen, but as a form of protest against the winner-take-all custom of the Electoral College, instead cast her votes for the candidates in the reverse of their positions on the national ticket; her presidential vote went to Bentsen and her vice presidential vote to Dukakis.

1 – 1976 election: Washington Elector Mike Padden, pledged for Republicans Gerald Ford and Bob Dole, cast his presidential electoral vote for Ronald Reagan, who had challenged Ford for the Republican nomination. He cast his vice presidential vote, as pledged, for Dole.

1 – 1972 election: Virginia Elector Roger MacBride, pledged for Republicans Richard Nixon and Spiro Agnew, cast his electoral votes for Libertarian candidates John Hospers and Theodora Nathan. MacBride’s vote for Nathan was the first electoral vote cast for a woman in U.S. history. MacBride became the Libertarian candidate for President in the 1976 election.

1912 to 1968
1 – 1968 election: North Carolina Elector Lloyd W. Bailey, pledged for Republicans Richard Nixon and Spiro Agnew, cast his votes for American Independent Party candidates George Wallace and Curtis LeMay.

1 – 1960 election: Oklahoma Elector Henry D. Irwin, pledged for Republicans Richard Nixon and Henry Cabot Lodge, Jr., cast his presidential electoral vote for Democratic non-candidate Harry Flood Byrd and his vice presidential electoral vote for Republican Barry Goldwater. (Fourteen unpledged electors also voted for Byrd for president, but supported Strom Thurmond, then a Democrat, for vice president.)

1 – 1956 election: Alabama Elector W. F. Turner, pledged for Democrats Adlai Stevenson and Estes Kefauver, cast his votes for Walter Burgwyn Jones and Herman Talmadge.

1 – 1948 election: Two Tennessee electors were on both the Democratic Party and the States’ Rights Democratic Party slates. When the Democratic Party slate won, one of these electors voted for the Democratic nominees Harry Truman and Alben Barkley. The other, Preston Parks, cast his votes for States’ Rights Democratic Party candidates Strom Thurmond and Fielding Wright, making him a faithless elector.

8 – 1912 election: Republican vice presidential candidate James S. Sherman died before the election. Eight Republican electors had pledged their votes to him but voted for Nicholas Murray Butler instead.

1860 to 1896
4 – 1896 election: The Democratic Party and the People’s Party both ran William Jennings Bryan as their presidential candidate, but ran different candidates for Vice President. The Democratic Party nominated Arthur Sewall and the People’s Party nominated Thomas E. Watson. The People’s Party won 31 electoral votes but four of those electors voted with the Democratic ticket, supporting Bryan as President and Sewall as Vice President.

4 – 1892 election: In Oregon, three electors voted for Republican Benjamin Harrison and one faithless elector voted for the third-party Populist candidate, James B. Weaver. All four were pledged to President Harrison, who lost the election.

63 – 1872 election: 63 electors for Horace Greeley changed their votes after Greeley’s death, which occurred before the electoral vote could be cast. Greeley’s remaining three electors cast their presidential votes for Greeley and had their votes discounted by Congress.

4 – 1860 election: 4 electors in New Jersey, pledged for (Northern) Democrat Stephen A. Douglas, voted for the eventual victor: Republican candidate Abraham Lincoln.

1812 to 1836
23 – 1836 election: The Democratic Party nominated Richard Mentor Johnson of Kentucky as their vice presidential candidate. The 23 electors from Virginia refused to support Johnson with their votes upon learning of the allegation that he had lived with an African-American woman. There was no majority in the Electoral College and the decision was deferred to the Senate, which supported Johnson as the Vice President.

32 – 1832 election: Two National Republican Party electors from the state of Maryland refused to vote for presidential candidate Henry Clay and did not cast a vote for him or for his running mate. All 30 electors from Pennsylvania refused to support the Democratic vice presidential candidate Martin Van Buren, voting instead for William Wilkins.

7 – 1828 election: Seven of nine electors from Georgia refused to vote for vice presidential candidate John C. Calhoun. All seven cast their vice presidential votes for William Smith instead.

1 – 1820 election: William Plumer pledged to vote for Democratic Republican candidate James Monroe, but he cast his vote for John Quincy Adams, who was also a Democratic Republican, but not a candidate in the 1820 election. Some historians contend that Plumer did not feel that the Electoral College should unanimously elect any President other than George Washington, but this claim is disputed. (Monroe lost another three votes because three electors died before casting ballots and were not replaced.)

4 – 1812 election: Three electors pledged to vote for Federalist vice presidential candidate Jared Ingersoll voted for Democratic Republican Elbridge Gerry. One Ohio elector did not vote.

Before 1812
6 – 1808 election: Six electors from New York were pledged to vote for Democratic Republican James Madison as President and George Clinton as Vice President. Instead, they voted for Clinton to be President, with three voting for Madison as Vice President and the other three voting for James Monroe to be Vice President.

19 – 1796 election: Samuel Miles, an elector from Pennsylvania, was pledged to vote for Federalist presidential candidate John Adams, but voted for Democratic Republican candidate Thomas Jefferson. He cast his other presidential vote as pledged for Thomas Pinckney. An additional 18 electors voted for Adams as pledged, but refused to vote for Pinckney.[12] (This election took place prior to the passage of the 12th Amendment, so there were not separate ballots for president and vice president.)

Congressional District Method: Currently, these two states are the only two in the union that diverge from the traditional winner-take-all method of electoral vote allocation.

With the district method, a state divides itself into a number of districts, allocating one of its state-wide electoral votes to each district. The winner of each district is awarded that district’s electoral vote, and the winner of the state-wide vote is then awarded the state’s remaining two electoral votes.

Here is a list of the number of electoral votes for each state:


NLR = No Legal Requirement

CDM = Congressional District Method

 

State

Electoral
Votes

Mandated
to vote with Popular Vote

Alabama

9

Party Pledge / State Law – § 17-19-2

Alaska

3

Party Pledge / State Law – §
15.30.040; 15.30.070

Arizona

11

NLR

Arkansas

6

NLR

California

55

State Law – § 6906

Colorado

9

State Law – § 1-4-304

Connecticut

7

State Law § 9-175

Delaware

3

NLR

Washington, D.C.

3

DC Pledge / DC Law – § 1-1312(g)

Florida

29

Party Pledge / State Law – §
103.021(1)

Georgia

16

NLR

Hawaii

4

State Law – §§ 14-26 to 14-28

Idaho

4

NLR

Illinois

20

NLR

Indiana

11

NLR

Iowa

6

NLR

Kansas

6

NLR

Kentucky

8

NLR

Louisiana

8

NLR

Maine

4* CDM

State Law – § 805

Maryland

10

State Law – § 20-4

Massachusetts

11

Party Pledge / State Law – Ch. 53, §
8, Supp.

Michigan

16

State Law – §168.47 (Violation
cancels vote and elector is replaced).

Minnesota

10

NLR

Mississippi

6

Party Pledge / State Law –
§23-15-785(3)

Missouri

10

NLR

Montana

3

State Law – §13-25-104

Nebraska

5* CDM

State Law – § 32-714

Nevada

6

State Law – § 298.050

New Hampshire

4

NLR

New Jersey

14

NLR

New Mexico

5

State Law – § 1-15-5 to 1-15-9
(Violation is a fourth degree felony.)

New York

29

NLR

North Carolina

15

State Law – § 163-212 (Violation
cancels vote; elector is replaced and is subject to $500 fine.)

North Dakota

3

NLR

Ohio

18

State Law – § 3505.40

Oklahoma

7

State Pledge / State Law – 26, §§
10-102; 10-109 (Violation of oath is a misdemeanor, carrying a fine of up to
$1000.)

Oregon

7

State Pledge / State Law – § 248.355

Pennsylvania

20

NLR

Rhode Island

4

NLR

South Carolina

9

State Pledge / State Law – § 7-19-80
(Replacement and criminal sanctions for violation.)

South Dakota

3

NLR

Tennessee

11

NLR

Texas

38

NLR

Utah

6

NLR

Vermont

3

State Law – title 17, § 2732

Virginia

13

State Law – § 24.1-162
(Virginia statute may be advisory – “Shall be expected” to vote for
nominees.)

Washington

12

Party Pledge / State Law – §§
29.71.020, 29.71.040, Supp. ($1000 fine.)

West Virginia

5

NLR

Wisconsin

10

State Law – § 7.75

Wyoming

3

State Law – §§ 22-19-106; 22-19-108

 

 

 

 

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