You gotta have faith

“Suf­fi­cient con­ser­v­a­tive Demo­c­ra­tic elec­tors avail­able to deny labor Social­ist nom­i­nee. Would you con­sider Byrd Pres­i­dent, Gold­wa­ter Vice Pres­i­dent, or wire any accept­able sub­sti­tute. All replies strict confidence.”

— Henry D. Irwin,

Faith­less elec­tor, 1960

“What, do I choose Samuel Miles to deter­mine for me whether John Adams or Thomas Jef­fer­son shall be pres­i­dent? No! I choose him to act, not to think.”

— Let­ter to the edi­tor, Gazette of the U.S., 1796

Although we have known since early in the morn­ing hours of Wednes­day, Nov. 7th that Pres­i­dent Obama has been reelected to another four year term, that elec­tion is not offi­cial until the Elec­toral Col­lege casts its vote and that vote is cer­ti­fied by Con­gress. The next step in that process occurs on Mon­day when the Elec­toral Col­lege mem­bers cast their votes.

Elec­tors are selected when you cast your vote for pres­i­dent. You’re not actu­ally vot­ing directly for the can­di­date but rather for the elec­tors who will rep­re­sent your state. But in many states those elec­tors are not legally bound to vote for a spe­cific can­di­date and even if they are bound to do so, the penal­ties for fail­ing to do so are not severe and may not be con­sti­tu­tion­ally enforceable.

When an elec­tor casts a vote for a can­di­date other than the one to which they are pledged, they are referred to as a “faith­less elec­tor.” Twenty-nine states and the Dis­trict of Colum­bia have laws that attempt to pre­vent or to pun­ish faith­less elec­tors. Ohio is one of those states. Ohio Revised Code sec­tion 3505.40 pro­vides that, “A pres­i­den­tial elec­tor elected at a gen­eral elec­tion or appointed pur­suant to sec­tion 3505.39 of the Revised Code shall, when dis­charg­ing the duties enjoined upon him by the con­sti­tu­tion or laws of the United States, cast his elec­toral vote for the nom­i­nees for pres­i­dent and vice-president of the polit­i­cal party which cer­ti­fied him to the sec­re­tary of state as a pres­i­den­tial elec­tor pur­suant to law.”

There is no spe­cific penalty in that sec­tion and so the gen­eral penalty for elec­tion law vio­la­tions applies. That makes the act a first degree mis­de­meanor, pun­ish­able by up to six months in jail and a fine of up to $1,000. No Ohio elec­tor has jumped ship to a dif­fer­ent can­di­date, though one elec­tor failed to vote at all in the 1812 election.

The rea­sons that elec­tors have strayed from their cho­sen paths are as var­ied as their his­to­ries. The very first, Samuel Miles, was a judge from Penn­syl­va­nia. In 1796, though pledged to vote for John Adams, he voted instead for Thomas Jef­fer­son. In his per­sonal papers, now held by the Amer­i­can Philo­soph­i­cal Soci­ety, he claims to have done so only because he thought Jef­fer­son was more likely to keep the new nation out of war.

Twelve years later six elec­tors from New York bailed on James Madi­son and voted instead for his Vice-Presidential can­di­date, George Clin­ton, a for­mer NY gov­er­nor. That act of polit­i­cal loy­alty has been coun­tered by sev­eral acts of polit­i­cal dis­union, such as the faith­less elec­tors of 1828 and 1832. Racial ten­sions have also led to faith­less elec­tors. In 1836 23 elec­tors from Vir­ginia refused to cast their pledged votes for VP Richard Men­tor John­son because of a prior rela­tion­ship he had with an African-American woman. In 1948, one Demo­c­ra­tic elec­tor voted instead for the States’ Rights Demo­c­ra­tic Party ticket of Strom Thur­mond. And in 1956 one elec­tor cast a vote for a local politi­cian instead of Adlai Steven­son, later mak­ing racially charged state­ments about the rea­sons for his vote.

Oth­ers have cast what have come to be known as protest votes. These include Henry Irwin’s 1960 vote for Harry Byrd (Irwin said he couldn’t ‘stom­ach’ Richard Nixon), Lloyd Bailey’s 1968 vote for George Wal­lace (which he said was in protest of planned appoint­ments by Nixon), Roger MacBridge’s 1972 vote for Lib­er­tar­ian can­di­date John Hos­pers, Mar­garet Leach’s 1988 vote for Lloyd Bentsen (actu­ally cast to protest the very fact that she was per­mit­ted to change her vote) and Bar­bara Lett-Simmons’ refusal to vote in 2000 (to raise aware­ness of the issue of the Dis­trict of Columbia’s lack of vot­ing rep­re­sen­ta­tion in Congress).

The Supreme Court ruled in 1952 that states can require elec­tors to promise to vote for the can­di­date they’re pledged to but held open a pos­si­ble future rul­ing that the pledge was unen­force­able. Still, the over­whelm­ing major­ity of elec­tors remain true to their pledge. In 1876 when Delaware’s Ruther­ford Hayes lost the pop­u­lar vote but won the Elec­toral Col­lege, there was immense pres­sure on elec­tors to stray and vote for Samuel Tilden. Lawyer and poet James Rus­sell Low­ell com­mented that he was “bound in honor to vote for Hayes.” He noted that peo­ple did not select him as an elec­tor because they trusted his judg­ment but rather, “because they thought they knew what that judg­ment would be. It is a plain ques­tion of trust.”

Come Mon­day we will see if that plain ques­tion of trust holds true for all 538 del­e­gates to this year’s Elec­toral College.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on Dec 13 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.