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What happens to a vote-switching Elector on December 19?

December 2, 2016 by Scott Bomboy


There is a distinct possibility that at least one Electoral College member will switch votes on December 19. So what happens to an elector when a person doesn’t vote for their pledged candidate and to the election in general?

Alexander Hamilton,  an inspiration for faithless electors?

On Thursday, two electors indicated in an op-ed on the political website The Hill that they could opt to vote for a presidential candidate during the December 19 Electoral College meetings other than the candidate they are pledged to vote for.

Polly Baca from Colorado and Levi Guerra from Washington state are electors, Democrats and pledged to vote for Hillary Clinton after the former Secretary of State won those two states on November 8 in the general election.  “Though we come from different generations, as a retired elected official and the youngest 2016 Elector, we agree with millions of Americans that Donald Trump is unfit to be president,” they wrote.

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Baca and Guerra may switch their Electoral College votes to a candidate other than Trump (and seemingly Clinton) if such a candidate emerges, or they may not vote at all. “Electors of good conscience should exercise their Constitutional right to elect the best person for the job of President or simply abstain from voting for either of the major party candidates,” they said.

Guerra, who is 19 years old, explained her decision at a Wednesday press conference.  “I’m only 19 and this is my first time being involved in politics, but I hope that my willingness to put my country before my party will show that my generation cares about all Americans,” Guerra said.

There could be as many as seven Democrats in Colorado and Washington state, who call themselves the Hamilton Electors, who will cast protest Electoral College votes for a candidate not named Trump or Clinton on December 19.

The group cites Alexander Hamilton as its inspiration and in particular, his writings in Federalist 68, where the Founding Father said that “the Electoral College affords a moral certainty, that the office of the President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Electoral College members who don’t vote for their pledged candidate are popularly known as “faithless electors” or on occasion, they are called “unfaithful electors.” Neither term is complimentary; in fact, 29 states and the District of Columbia have laws on the books that punish Electoral College members who don’t vote for their pledged candidates.

There is no requirement under the Constitution for Electoral College members to remain “faithful.”

Colorado and Washington state have laws that attempt to bind electors to the candidate they pledged to support. The punishment for Faithless Electors in Washington is as follows: “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.” And in Colorado, the situation is different; an Electoral College member who votes for another candidate, under the state law, is disqualified and replaced with a new member who will vote for the pledged candidate.

In reality, unless there is an unprecedented run of 38 electors who switch their votes from Trump to Clinton on December 19 (with states allowing those votes), the faithless electors can make a symbolic statement at best. But there could unintended consequences if the longest of longshots happens.

Concurrently, the Green Party is leading a recount effort in Michigan, Wisconsin and Pennsylvania. If those efforts were to result in no presidential candidate having 270 electoral votes, the presidential election goes to the House of Representatives – where the three top presidential Electoral College vote-getters are in the run-off, or contingent, election.

That means if there is one “protest” electoral vote for a third candidate, such as Mitt Romney, John McCain, Condoleezza Rice or John Kasich (as suggested by Baca and Guerra in their op-ed),  the third candidate with the most Electoral College votes joins Trump and Clinton on the House ballot.

Few people remember today that in the 1825 House contingent election where John Quincy Adams defeated Andrew Jackson that William Crawford was the third candidate in that House election and he won the support of four states - even though Crawford had suffered a stroke before the election.

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

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