The Problem of the Faithless Elector: Trouble Aplenty Brewing Just below the Surface in Choosing the President

While there was a bit of suspense on election night of 2004, by the next morning it was clear that George Bush had secured reelection, no ifs, ands, or buts. Or was it? The electoral college was not to meet (in fifty-one separate state and District of Columbia gatherings) until the Monday after the second Wednesday in December, some forty-one days later.1 Suppose at those electoral college proceedings, a majority of the electors had cast their votes not for George Bush, as they had been committed to do beforehand, but for Utah's Senator Robert Bennett (or, for that matter, anyone else who was a natural born citizen of the United States, at least thirty-five years old, and had been resident in the United States for the prior fourteen years),2 even though not a single popular vote in the entire nation had been cast for Bennett.3 That, of course, did not happen, and there was never any real chance of it happening. But what if it had happened? Would George Bush or Robert Bennett-or perhaps neither-be our president? That is the problem, in its starkest form, of the "faithless" elector. Some states have statutory provisions that explicitly purport to "bind" electors to vote in accord with their prior commitments. These laws sometimes simply instruct electors to vote as committed,4 but sometimes they provide penalties of one sort or another. North Carolina, for instance, imposes a fine of $500 for faithlessness, while New Mexico makes it a "fourth degree felony."5 Some laws require political parties to extract pledges, while others have state officers compose and administer oaths of faithfulness.6 And some states provide that a faithless vote constitutes resignation from the office of elector.7 If these laws purport to change faithless votes, however, they may be unavailing. In the 1952 decision Ray v. Blair, the Supreme Court held that states may allow political parties to extract pledges of faithfulness to the nominee of the national party from candidates for elector who seek to run in the party's primary.8 But the court explicitly reserved the possibility that the pledge was "legally unenforceable because of an assumed constitutional freedom."9 A whole host of electoral college commentators insists that electors have just such a "constitutional freedom" to vote faithlessly.10 All very interesting, you may say, but law professors seemingly thrive on whimsical questions that have little relevance for the real world. Outside of Utah, few people have even heard of Robert Bennett. Don't we have enough real problems to worry about, so that we can ignore this hypothetical one? Well, if you prefer more realistic possibilities, try this question: May electors effectively disregard the statewide popular votes that put them in office and successfully cast their votes for the "losing" candidate in their states-the candidate of the other major political party? If just a few electors were to succeed in such an effort, it could change the result of a close election. That possibility is not far-fetched at all, as evidenced in the last two elections. While no president has ever come to office through the votes of faithless electors, one faithless elector abstained in the presidential balloting in the 2000 election, while in 2004 another elector in a different state voted for John Edwards for president, rather than John Kerry. Over the years there have been perhaps a dozen faithless electors of one stripe or another in the presidential contests. And, at least in the close 2000 election, there is nothing at all fanciful about the possibility that faithless electors might have changed the outcome. Even after the Florida contest was decided in George Bush's favor that year, if three Republican electors had (successfully) voted for Albert Gore-but all other electors had remained faithful to their preelection commitments-Gore would have triumphed in the electoral college, 270-268.11 And if two Republican electors had (successfully) abstained or voted for someone other than Bush or Gore, the presidential selection would have been relegated to the House of Representatives for want of an electoral college majority. …