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.