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What happened the last time we had a Faithless Elector

December 9, 2016 by Scott Bomboy

 

With another report of an Electoral College member ready to switch votes, it’s time to look back to the 2004 election, when Congress had to deal with two last-second challenges as the final presidential votes were counted in the House’s chambers.

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With another report of an Electoral College member ready to switch votes, it’s time to look back to the 2004 election, when Congress had to deal with two last-second challenges as the final presidential votes were counted in the House’s chambers.

Christopher Suprun, a Texas Republican delegate, wrote in the New York Times this week that he will not be voting for Donald Trump, the candidate who won the popular vote in Texas. Instead, Suprun might cast his vote for Ohio Governor John Kasich.

Texas doesn’t have a “faithless elector” law that would disqualify Suprun from casting his vote for a candidate other than the one (in this case, Trump) who won his party’s Electoral College slate.  A few Electoral College members in Colorado and Washington state also may try to vote for other candidates; Colorado’s law allows the party to replace a faithless elector, but Washington state’s law only fines them. That leaves open the possibility that at least two votes from faithless electors will be among those counted (or considered) on January 6, 2017, as the House and Senate meet in the House chambers to start the ritual of counting the Electoral College votes submitted by the 50 states and the District of Columbia.

Federal law outlines the vote-counting procedure during this joint congressional sessions, and individual votes and a whole slate of state’s votes can be contested during the tally of votes in Congress on January 6. That leaves open the possibility that Congress could toss out the “faithless” votes or count them if they don’t affect the election’s outcome.

Title 3 of the United States Code, Sections 15-18, details the process.  The Vice President of the United States presides over the meeting. Two members of the House and two members of the Senate read the Electoral College results submitted by the states in alphabetical order. Once finished, the vote tally is given to the Vice President, who certifies the winner.

However, the Vice President must also ask if anyone objects in Congress during the vote counting: “Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any,” the law reads. If one member of the House and Senate each object, in writing, to the same elector or slate of electors, the House and Senate go into private meetings to vote on the objections. When the session reconvenes, the votes about the objections are announced, and the contested votes are either counted or disqualified.

Back in 2005 after the George Bush-John Kerry election, there were two issues related to this process: One Electoral College member in Minnesota had switched votes in December 2004, while there was the likelihood of two members of Congress challenging the results in Ohio, the state that put Bush over-the-top in the Electoral College voting.

In Minnesota, the state required its10 Electoral College members to put an anonymous voting slip into a box. One voter became a faithless elector when they picked Democratic vice presidential nominee John Edwards for President as well as Vice President. Those votes were certified by the state and sent to Congress.

During the January 6, 2005 vote counting session, Congress met at 1 p.m. to certify the election.  Minnesota’s results, with one presidential vote for John Edwards, were announced in Congress. No one on the floor objected to the anonymous faithless elector, and it was officially counted.

But when Ohio’s votes were announced for Bush, the chair recognized Stephanie Tubbs Jones, a House Representative from Ohio. “Mr. Vice President, I seek to object to the electoral votes of the State of Ohio on the ground that they were not, under all of the known circumstances, regularly given and have a signed objection, and I do have a Senator,” Jones said, acknowledging that Senator Barbara Boxer has signed on to her objection.

Vice President Dick Cheney then called for a recess for each chamber of Congress to discuss the objection in separate sessions. Speech was limited to five minutes per member and each session was limited to two hours. For her part, Jones explained why she objected. “This objection does not have at its root the hope or even the hint of overturning the victory of the President; but it is a necessary, timely, and appropriate opportunity to review and remedy the most precious process in our democracy,” she said. “I raise this objection because I am convinced that we as a body must conduct a formal and legitimate debate about election irregularities.”

When the joint session resumed, the votes were announced:  Only one Senator and 33 House members agreed to the objection. “Pursuant to the law, chapter 1 of title 3, United States Code, because the two Houses have not sustained the objection, the original certificate submitted by the State of Ohio will be counted as provided therein,” Cheney announced, and the vote tally continued.

After the final totals were announced by Cheney, he said, “this announcement shall be a sufficient declaration of the persons elected President and Vice President of the United States for the term beginning January 20, 2005, and shall be entered, together with a list of the votes, on the respective journals of the Senate and the House of Representatives.” The session concluded at 5:18 p.m.

In all, there have been more than 150 faithless electors in Electoral College history for various reasons. In some cases, candidates died between Election Day and the Electoral College voting date, forcing electors to pick another candidate or not vote. In other cases, electors switched votes for various reasons.

Only in one case, back in 1968, Congress used its powers under federal law to decide the fate of a faithless elector. The elector voted for George Wallace instead of Richard Nixon; after objections were filed in the House and Senate, both voted separately to accept the vote.

Scott Bomboy is the editor in chief of the National Constitution Center.

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