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The 'Real' Election Day

Why Americans need to take seriously the problem of faithless electoral votes

By Robert Bennett

Many Americans -- I dare say most, or perhaps almost all -- think that our presidential election was held in early November, and that nothing further of significance in the selection process need happen until inauguration day, January 21 of next year. But as a formal matter, the election of the President (and Vice-President) will actually take place December 17 -- “the first Monday after the second Wednesday in December,” in the words of the governing federal statute.  

Under the constitutional scheme, that early November vote was not for our chief executive officers but rather for presidential electors who make up what has come to be called the “electoral college.” Those electors will meet to vote tomorrow [next Monday] in separate state meetings (and in the District of Columbia). It is their votes that will determine who will be inaugurated in January, at least if some candidate receives votes of a majority of the electors elected (the Constitution’s word is “appointed”) around the country. Unless there is some glitch, the “majority” required is 270 electors. 

The principal reason those meetings December 17 (and the votes taken at them) are so far under the radar screen is that presidential electors pretty reliably cast their votes for the presidential and vice-presidential candidates nominated by the same political parties that nominated the victorious electors. So after the very close vote in Florida was resolved in favor of Obama and Biden this past November, the news media told the nation that those Democratic candidates had “won” a total of 332 electoral votes across the country, while the losing Republican candidates had 206 electoral votes. That wasn’t really true, but it serves as a ready shorthand for what usually happens in the electoral college voting. 

Usually, but not always. For occasionally one or more electors will cast what have come to be called “faithless votes,” either abstaining or voting for a presidential or vice-presidential candidate other than  the one nominated by the elector’s political party. In the 2000 election, for instance, a District of Columbia elector on the victorious Democratic slate “abstained” rather than voting for Albert Gore for President and Joseph Lieberman for Vice-President. And there was a faithless vote for John Edwards for President in the 2004 election. Over the years there has been a smattering of such faithless electoral votes.

That phenomenon too has largely escaped public attention, probably because, at least since the vice-presidential vote in 1836, faithless votes have never threatened to change the apparent election day outcomes of the presidential and vice-presidential contests. Nor is there any reason to think that the Obama and Biden candidacies are in any jeopardy tomorrow on account of faithless electoral votes.   

But that is in good part because the apparent election day electoral vote margin of Obama and Biden was so sizeable. Given the apparent election day margin of 126 electoral votes that separated the two tickets, it would take very large scale faithlessness December 17 to jeopardize their apparent “victories.” And large scale faithlessness is very unlikely, since electors are typically committed to the political parties that nominated them. Sizeable electoral college margins, moreover, are quite typical, due in major part to the fact that most states (all but Maine and Nebraska) choose their electors on a “winner-take-all” basis, where entire party slates of electors are chosen on a state-wide basis. Electoral votes thus come in “clumps,” some of them quite large, and that makes close electoral vote races unlikely.

We would do well, however, to pay closer attention to mischief that lurks in the possibility of faithless electoral votes. For while close electoral vote contests are unlikely, they are most certainly not impossible. Witness the 2000 electoral vote margin of five (four if there had not been the faithless abstention), and the 1876 margin of one. There was even a good deal of talk before this past election day that there would be an electoral college tie. And if there were a close electoral college race, both major party campaigns would have strong incentives to try to induce elector faithlessness, the apparent loser to try to change the outcome, and the apparent winner in defense.

Over the years some campaigns have acknowledged making plans to court faithlessness if the apparent election day outcome was close. And some electors have acknowledged an openness to faithlessness. Indeed polling of electors after the 2004 and 2008 elections by the political scientist Robert Alexander suggested a surprising degree of both campaigning for faithlessness and receptivity to it -- and that despite the fact that neither apparent outcome was particularly close.

The potential damage from faithless voting that did threaten to change an apparent outcome would be very great indeed. Each side would likely claim that it had “really” won, and each of those claims would have a degree of plausibility. There would likely be rival electoral vote counts submitted by the states that were settings of the faithlessness, and a donnybrook could break out at the official counting session before a joint meeting of the House and Senate in early January. Particularly if the two Houses were controlled by different political parties, any resolution might even be delayed beyond inauguration day, and even if reached would not go down at all easily around the country, given our faction-riven political landscape. 

For these reasons the problem of faithlessness deserves our attention before we experience another close electoral college contest like that in the 2000 election. Actually more than half the states already have some form of law that forbids or discourages faithless electoral voting, but they do so in a variety of ways. Some of the laws against faithlessness have little teeth in them, and some leave ambiguities about whether the faithless votes might nonetheless be counted as cast. 

To try to corral the problem before the threat of serious harm is imminent, an organization called the Uniform Laws Commission has crafted a Uniform Faithful Presidential Electors Act and recommends universal adoption by the states and the District of Columbia. The Act decisively substitutes faithful votes for any faithless ones and makes clear that the faithful ones are those that the state endorses. I serve as the Reporter for that effort, and hence am not a disinterested observer. But please believe me that with a comfortable election behind us it is the right time to take seriously the problem of faithless electoral votes on our “real” presidential election day.  

- Robert Bennett is Nathaniel L. Nathanson Professor of Law and former dean of the Northwestern University School of Law.
Topics: Media, Opinion

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