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The namesake of the Hamilton Electors, Alexander Hamilton

In the 2016 United States presidential election, ten members of the Electoral College voted or attempted to vote for a candidate different from the ones to whom they were pledged.[1] Three of these votes were invalidated under the faithless elector laws of their respective states, and the elector either subsequently voted for the pledged candidate or was replaced by someone who did.[2][3][4] Although there had been a combined total of 155 instances of individual electors voting faithlessly prior to 2016 in over two centuries of previous US presidential elections, 2016 was the first election in over a hundred years in which multiple electors worked to alter the result of the election.[1]

As a result of the seven successfully cast faithless votes, the Democratic Party nominee, Hillary Clinton, lost five of her pledged electors while the Republican Party nominee and then president-elect, Donald Trump, lost two. Three of the faithless electors voted for Colin Powell while John Kasich, Ron Paul, Bernie Sanders, and Faith Spotted Eagle each received one vote. The defections fell well short of the number needed to change the result of the election; only two of the seven defected from the winner, whereas 37 were needed to defect in order to force a contingent election in Congress (a tally of less than 270).[5]

The faithless electors who opposed Donald Trump were part of a movement dubbed the "Hamilton Electors" co-founded by Micheal Baca of Colorado and Bret Chiafalo of Washington. The movement attempted to find 37 Republican electors willing to vote for a different Republican in an effort to deny Donald Trump a majority in the Electoral College and force a contingent election in the House of Representatives. The electors advocated for voting their conscience to prevent the election of someone they viewed as unfit for the presidency as prescribed by Alexander Hamilton in No. 68 of The Federalist Papers.[6][7] Despite their stated intentions to defeat Donald Trump, these electors cast their votes for persons other than the candidate to whom they were pledged, Trump's opponent Hillary Clinton.[8] By the time they switched their votes away from Trump's opponent, it was numerically impossible to achieve their stated goal as all but 30 of the Trump-pledged electoral votes had already been cast (in different states in the same or later time zones), with 37 votes needed to switch to deny Trump an outright victory in the Electoral College. Electors were subjected to public pressure, including threats of death if they remained faithful to voting for Trump.[9] The Washington elector who voted for Faith Spotted Eagle did so in protest of Hillary Clinton's support for the Dakota Access Pipeline.

The seven validated faithless votes for president were the most to defect from presidential candidates who were still alive in electoral college history, surpassing the six electors who defected from James Madison in the 1808 election.[10] This number of defections has been exceeded only once: in 1872, a record 63 of 66 electors who were originally pledged to losing candidate Horace Greeley cast their votes for someone else (Greeley had died between election day and the meeting of the Electoral College). The six faithless vice-presidential votes in 2016 are short of the record for that office, without considering whether the vice-presidential candidates were still living, as multiple previous elections have had more than six faithless vice-presidential votes; in 1836, faithless electors moved the vice-presidential decision to the US Senate, though this did not affect the outcome.[11]

Background

The electors themselves are named on the presidential ballots of only eight states.[12]
  In the indicated states, laws exist which either impose a fine or imprisonment on an elector who fails to vote according to the state-specified rules, force the elector to vote for the candidate they pledged to vote for, or disqualify the elector and provide a replacement.[13]

In the unique system of presidential elections of the United States, the president is not determined directly by the popular vote of the national electorate, but indirectly through the mechanism of the Electoral College determined by cumulative wins of the popular votes of state electorates. In this system of representative democracy, a presidential candidate is deemed to have won a presidential race if that candidate wins a simple majority of the electoral college vote.

Electors are selected on a state-by-state basis: in 48 states all electors are pledged to the winner of the statewide popular vote; in Maine and Nebraska the winner of each congressional district receives one elector and the statewide winner receives two. The electors, once selected, are free under federal law to vote for a candidate other than the one for whom they were pledged. However, at the time of the election, thirty-one states and the District of Columbia had laws requiring their electors to vote for their pledged candidate,[14] and courts had issued conflicting opinions regarding the constitutionality of those laws. The supremacy clause established by the Constitution of the United States provides that state courts are bound by federal law and the Constitution in the event that state law were to contradict them.

Only four times in American history (1876, 1888, 2000, and 2016) has a presidential candidate lost the popular vote but achieved the Electoral College majority, thereby assuming the presidency; in the last three such cases, no candidate polled an absolute majority of the popular vote.

In the event that no one receives a majority of the Electoral College vote, the selection of the president is made by the House of Representatives under certain constitutional guidelines. In 1824 the candidate with the highest popular vote (Andrew Jackson) also had the most electoral votes but, crucially, did not have a majority in the Electoral College. Despite John Quincy Adams having lost the popular vote and having received fewer electoral votes than Andrew Jackson, the House of Representatives chose Adams to become President.

Number of intended faithless electors

In the 2016 election cycle, the threshold of 270 electoral votes to win the presidency and vice presidency outright could have been thwarted by garnering a minimum of at least 12 percent of all Republican electors to become faithless, that is, 37 of 306 Republican electors. However, critics noted at the time that garnering this many electors was extremely unlikely,[15][16] as electors vote more than 99 percent of the time as pledged.[17]

On November 16, 2016, journalist Bill Lichtenstein published an article entitled, "The Way Out of Trumpland: Hail Mary Pass to Save the Nation" in the Huffington Post, detailing the plans by presidential elector Micheal Baca to seek to derail Trump's ascent to the presidency by convincing Democratic and Republican presidential electors to vote for a more moderate candidate on December 19, 2016, when the Electoral College voted.[18] Lichtenstein's article soon went viral, and on December 5, 2016, several members of the electoral college, seven from the Democratic Party[19] and one from the Republican Party,[20] publicly stated their intention to vote for a candidate other than the pledged nominees at the Electoral College vote on December 19, 2016.

Texas Republican elector Christopher Suprun publicly pledged to not cast his vote for Donald Trump as allowed by Texas state law.[21] Suprun indicated that he had also been in confidential contact with several Republican electors who planned to vote faithlessly, stating that they would be "discussing names specifically and see who meets the [fitness for president] test that we could all get behind."[22] By December 5, 2016, two Republican electoral college members who publicly stated their intention to not vote for Trump had resigned. Texas Republican elector Art Sisneros willingly resigned in November rather than vote for Trump.[23][24] Georgia Republican elector Baoky Vu resigned in August in the face of reaction to his public statement that he would not vote for Trump.[25] Both Sisneros and Vu served in states that lacked any laws preventing electors from voting their conscience.[26]

Although it is difficult to ascertain how many more electors, especially Republican electors, considered becoming faithless and voting for a Republican other than Trump, it was reported that at least an additional 20 Republican electors had already accepted free-of-charge anonymous legal counsel and support provided for Republican faithless electors to assist them in voting against Trump.[27][28][29][30][31][32]

The Republican National Committee mounted an expansive whip operation to ensure that all those electors selected to vote for the Republican nominee indeed did so.[33] On December 14, multiple Republican members of the electoral college stated under condition of anonymity that they were being coerced with "threats of political reprisal," adding "that the Donald Trump campaign is putting pressure on Republican electors to vote for him based on ... future political outcomes based on whether they vote for Donald Trump or not."[34][35]

Public outreach to electors

On December 14, the Unite For America campaign released a video[36] published on YouTube and other media addressed directly to Republican electors urging that each of them individually, plus 36 of their colleagues (at least 37 Republican electors in total), vote for a Republican other than Donald Trump for President. The video featured numerous public figures,[37] including Debra Messing, Martin Sheen, and Bob Odenkirk, urging Republican electors to prevent a Trump presidency, expressing several times the message: "I'm not asking you to vote for Hillary Clinton". In electing an alternative Republican, the featured speakers ask the elector to become an "American hero" by using the elector's constitutional "authority" to give "service and patriotism to the American people" through a vote of "conscience."[36]

Daniel Brezenoff's anti-Trump Change.org petition became the largest in that organization's history with nearly five million signatures, and on December 14, full-page ads funded by Brezenoff's related GoFundMe campaign ran in The Washington Post, The Philadelphia Inquirer, the Austin American-Statesman, The Salt Lake Tribune, and the Tampa Bay Times. Full-page ads ran the next day, December 15, in The Atlanta Journal-Constitution and the Wisconsin State Journal.[38]

On December 11, Democratic US Representative Jim Himes of Connecticut wrote on Twitter that Trump is "completely unhinged" and "the Electoral College must do what it was designed for."[39] Himes said he made the plea to the Electoral College because Trump refused to say that the Russians hacked Democrats during the election.[40]

Legal counsel and advocacy

Lawrence Lessig

On December 6, 2016, the Hamilton Electors' website was established to advocate the election of an alternative Republican as the next President of the United States. Lawrence Lessig, a prominent Harvard University law professor (and former candidate for the Democratic presidential nomination himself), announced that he was "teaming with a California-based law firm to offer legal support for any members of the Electoral College seeking to oppose President-elect Donald Trump." Lessig said the counsel and support (namely Laurence Tribe, who has argued before the Supreme Court 36 times)[41] would be provided anonymously.[42] Litigation is a component of Lessig's Equal Citizens movement.

Lessig and Boston attorney R. J. Lyman created a nonprofit organization called Electors Trust to provide potential faithless electors with pro bono legal assistance.[43][28][44]

Litigation prior to the vote

In states with laws against faithlessness, depending on the particular state voting faithlessly despite the laws may incur anything from no prescribed punishment, to simple removal and replacement of the intended faithless elector, to fines and the potential imprisonment of the elector. Democratic electors filed lawsuits in Colorado, Washington, and California, but federal judges declined to issue injunctions blocking these laws, and there was insufficient time to appeal to the Supreme Court before the electoral college vote.[45] However, in Baca v. Hickenlooper a three-judge panel of the United States Court of Appeals for the Tenth Circuit declared in a footnote that any attempt to remove electors "after voting has begun" would be "unlikely in light of the text of the Twelfth Amendment."[46]

While at the time of the election the constitutionality of faithless electors had not yet been addressed by the Supreme Court, in Ray v. Blair, 343 U.S. 214 (1952) the court had ruled in favor of state laws requiring electors to pledge to vote for the winning candidate in order to be certified as electors, as well as removing electors who refuse to pledge. Nevertheless, the court had also written:[47]

However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose [emphasis added] in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.

In his dissent, Justice Robert H. Jackson, joined by Justice William O. Douglas, wrote:

No one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.

Recorded faithless electors

Validated

State Party Pledged to Presidential vote Vice presidential vote Name of Elector References
Hawaii Clinton/Kaine Bernie Sanders (I-VT) Elizabeth Warren (D-MA) David Mulinix [48]
Texas Trump/Pence John Kasich (R-OH) Carly Fiorina (R-VA) Christopher Suprun [49][50][51]
Trump/Pence Ron Paul (L-TX)[52] Mike Pence (R-IN) Bill Greene
Washington Clinton/Kaine Colin Powell (R-VA)[a] Maria Cantwell (D-WA) Levi Guerra [56][47][57][58]
Clinton/Kaine Colin Powell (R-VA) Susan Collins (R-ME) Esther John
Clinton/Kaine Colin Powell (R-VA) Elizabeth Warren (D-MA) Peter Bret Chiafalo
Clinton/Kaine Faith Spotted Eagle (D-SD) Winona LaDuke (G-MN) Robert Satiacum Jr.

Invalidated

State Party Pledged to Presidential vote Vice presidential vote Name of Elector Outcome References
Maine Clinton/Kaine Bernie Sanders (I-VT) Tim Kaine (D-VA) David Bright Changed vote to Clinton [59]
Minnesota Clinton/Kaine Bernie Sanders (I-VT) Tulsi Gabbard (D-HI) Muhammad Abdurrahman Replaced by alternate elector [59][60]
Colorado Clinton/Kaine John Kasich (R-OH) barred from voting Micheal Baca Replaced by alternate elector [61][62]

Recipients of votes

President
Vice President

Legal challenges

The four faithless electors from Washington were each fined $1,000 for breaking their pledge.[63] Three of the electors appealed the fines, which were upheld by the Washington Supreme Court in May 2019 by an 8–1 vote.[64][65] On October 7, 2019, the electors unsuccessfully appealed their case, Chiafalo v. Washington, to the U.S. Supreme Court.[66][67]

In Colorado, three of the electors filed suit in the United States District Court for the District of Colorado. The case, Baca v. Colorado Department of State, was dismissed by Judge Wiley Young Daniel on April 10, 2018. The electors filed an appeal with the 10th Circuit and oral arguments were held on January 24, 2019.[68] On August 20, 2019, a three-judge panel ruled 2–1 in favor of the electors.[62][68][69] On October 16, 2019, Colorado appealed the 10th Circuit's decision to the Supreme Court.[70][71]

The Supreme Court granted certiorari in both the Washington and Colorado cases in January 2020; while initially consolidated, Justice Sotomayor's recusal in the Colorado case due to a prior relationship with one of the respondents kept the cases separate.[72][73] Oral arguments in both cases had been scheduled for April, but were subsequently postponed due to the COVID-19 pandemic. It was then announced that oral arguments would be held via phone, which occurred on May 13, 2020. On July 6, 2020, the Supreme Court ruled unanimously that states may require an elector to vote for the candidate to whom they had pledged, and a fine imposed for an elector for breaching a pledge is not unlawful.[74]

See also

Notes

  1. ^ Powell had several homes, including one in NYC (still)[53] and also one in DC, but was officially a VA resident per WikiLeaks emails,[54] and per his 'verified' social media account.[55]

References

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  3. ^ "'Faithless elector' dismissed, Minnesota's 10 votes go to Clinton". MPR News. February 15, 2016. Retrieved September 26, 2018.
  4. ^ Eason, Brian. "Colorado's electoral votes go to Hillary Clinton after one is replaced". The Denver Post. Retrieved September 26, 2018.
  5. ^ Julia Boccagno (December 21, 2016). "Which candidates did the seven "faithless" electors support?". CBS News.
  6. ^ O'Donnell, Lilly (November 21, 2016). "Meet the 'Hamilton Electors' Campaigning for an Electoral College Revolt". The Atlantic.
  7. ^ "Hamilton Electors". Hamilton Electors. Archived from the original on November 22, 2016. Retrieved November 23, 2016.
  8. ^ Supreme Court unanimously sides with Colorado-Washington in faithless electors case, Colorado Public Radio, July 6, 2020. Retrieved 2020-11-22
  9. ^ Sherlock, Ruth (December 18, 2016). "Thousands Send Letters, Death Threats, to Pressure Electoral College to Avert Outcome of Presidential Election". The Daily Telegraph.
  10. ^ "Electoral College sees record-breaking defections". POLITICO. Retrieved December 20, 2016.
  11. ^ Sabato, Larry J.; Ernst, Howard R. (May 14, 2014). Encyclopedia of American Political Parties and Elections. Infobase Publishing. p. 133. ISBN 978-1-4381-0994-7. Retrieved November 15, 2016. in 1836...the Virginia electors abstained rather than vote for Democratic vice presidential nominee Richard Johnson
  12. ^ "2004 Electors for President and Vice President of the United States". TheGreenPapers.com. 2004.
  13. ^ "THE ELECTORAL COLLEGE". National Conference of State Legislatures.
  14. ^ "Laws Binding Electors". Retrieved March 4, 2020.
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  16. ^ "Will There Be Faithless Electors in 2016? It's Unlikely They'll Change the Election's Outcome". Bustle.
  17. ^ Bromwich, Jonah Engel (November 8, 2016). "How Does the Electoral College Work?". The New York Times.
  18. ^ "The Way Out of Trumpland: Hail Mary Pass to Save the Nation". Huffington Post.
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  20. ^ Pilkington, Ed (December 5, 2016). "First Republican 'faithless elector' announces intent to vote against Trump". The Guardian.
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  22. ^ Gradison, Robin (December 9, 2016). "'Rogue' GOP Elector Says Others Will Join in Opposing Trump". ABC News.
  23. ^ Zimmerman, Neetzan (November 28, 2016). "Republican elector chooses to resign rather than vote for Trump". The Hill.
  24. ^ Steve Inskeep, host (December 7, 2016). "Texas Elector Resigns, Saying He Can't Vote For Trump In Electoral College". NPR. Retrieved December 29, 2016.
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  29. ^ Rozsa, Matthew (December 16, 2016). "The Hamilton Electors don't have enough Republicans to stop Trump — but they're getting there". Salon. Retrieved December 18, 2016.
  30. ^ Richardson, Valerie (December 14, 2016). "Harvard prof advising electors says 20+ Republicans may vote against Trump". The Washington Times.
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  32. ^ "Why an electoral college coup to stop Donald Trump isn't at all likely, Part 59". The Washington Post. Retrieved December 18, 2016.
  33. ^ Cheney, Kyle (December 13, 2016). "RNC keeps close tabs on Electoral College vote: GOP effort makes sure Republican electors don't go wobbly on Trump". Politico.
  34. ^ Rozsa, Matthew (December 14, 2016). "Source: Donald Trump's campaign is threatening "political reprisal" for defecting Republican electors". Salon.
  35. ^ Broomfield, Matt (December 14, 2016). "Donald Trump is "threatening" rebel Republican politicians". The Independent.
  36. ^ a b Unite For America (December 14, 2016). A Message for Electors to Unite For America. YouTube.
  37. ^ "Watch Debra Messing, Martin Sheen and Other Stars Urge Electors to Prevent a Trump Presidency". December 15, 2016.
  38. ^ Cheney, Kyle (December 14, 2016). "Full-page ads turn up the heat on Trump electors A pro-Clinton activist is running newspaper ads in Philadelphia, Austin, Salt Lake City and Tampa Bay". Politico.
  39. ^ Himes, James (December 11, 2016). "Jim Himes Status/808116879558660098". Twitter. We're 5 wks from Inauguration & the President Elect is completely unhinged. The electoral college must do what it was designed for.
  40. ^ Halper, Daniel (December 12, 2016). "Congressman begs Electoral College voters to block Trump". New York Post.
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  42. ^ Cheney, Kyle (December 13, 2016). "Lessig: 20 Trump electors could flip". Politico.
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  44. ^ "Lawrence Lessig Offers Free Legal Aid To Anti-Trump Electors". NPR.org. Retrieved December 18, 2016.
  45. ^ Cheney, Kyle (December 16, 2016). "Judge deals critical blow to anti-Trump Electoral College fight". Politico.
  46. ^ Cheney, Kyle (December 17, 2016). "Court: Removing 'faithless' electors may be unconstitutional". Politico.
  47. ^ a b Brunner, Jim (December 19, 2016). "Four Washington state electors break ranks and don't vote for Clinton". The Seattle Times. Retrieved December 20, 2016.
  48. ^ Hellmann, Jessie (December 19, 2016). "Democratic elector in Hawaii votes for Sanders". Retrieved December 20, 2016.
  49. ^ Walsh, Sean Collins (December 19, 2016). "All but 2 Texas members of the Electoral College choose Donald Trump". Statesman. Retrieved December 24, 2016.
  50. ^ Texas electors cast 36 votes for Trump, 1 for Kasich, 1 for Ron Paul. Texas Tribune (December 19, 2016). Retrieved December 19, 2016.
  51. ^ Which candidates did the seven "faithless" electors support? CBS News (December 21, 2016). Retrieved December 21, 2016.
  52. ^ Lau, Ryan (February 3, 2018). "Ron Paul Attacks Libertarian Leadership in Response to Controversy". 71Republic. Archived from the original on February 4, 2018. Retrieved February 3, 2018. I paid my lifetime membership, in 1987, with a gold coin, to make a point.
  53. ^ "Gen. Colin Powell Sells His $2.8M Upper West Side Condo". May 24, 2016.
  54. ^ "Emails detail Colin Powell's substantial role at City College". Politico. Archived from the original on February 26, 2021. Retrieved March 8, 2021.
  55. ^ "General Colin L. Powell - Informatio". Facebook. December 20, 2016. Archived from the original on December 20, 2016.((cite web)): CS1 maint: bot: original URL status unknown (link)
  56. ^ (King5), Liza Javier. "VicePresidentBallots". www.documentcloud.org.((cite web)): CS1 maint: numeric names: authors list (link)
  57. ^ La Corte, Rachel (December 19, 2016). "4 Washington State electors pick candidates other than Clinton". Associated Press. Archived from the original on December 21, 2016. Retrieved December 20, 2016 – via The Olympian.
  58. ^ "Meet Faith Spotted Eagle, who received one Washington state elector's presidential vote". December 19, 2016.
  59. ^ a b Electoral College Faithless Elector Foiled Trying To Vote For Bernie Sanders. The Huffington Post (December 19, 2016). Retrieved December 19, 2016.
  60. ^ Bakst, Brian (December 19, 2016). 'Faithless elector' dismissed, Minnesota's 10 votes go to Clinton. Minnesota Public Radio. Retrieved December 19, 2016.
  61. ^ "Colorado's electoral votes go to Hillary Clinton after one is replaced". The Denver Post. Retrieved December 20, 2016.
  62. ^ a b Flynn, Meagan (August 22, 2019). "He tried to stop Trump in the electoral college. A court says his 'faithless' ballot was legal". The Washington Post. Retrieved October 29, 2019.
  63. ^ La Corte, Rachel (December 23, 2016). "Four state electors to be fined $1,000 for vote". Kitsap Sun. Retrieved December 25, 2016.
  64. ^ Lane, Charles (October 28, 2019). "A nightmare scenario for 2020: A tie that can't be broken. It's conceivable". The Washington Post. Retrieved October 29, 2019.
  65. ^ Cornfield, Jerry (May 24, 2019). "State high court upholds $1,000 fines on 'faithless electors'". Seattle Weekly. Retrieved October 29, 2019.
  66. ^ "Supreme Court asked to decide whether electors must vote for state popular vote winner". Jurist. October 8, 2019. Retrieved October 18, 2019.
  67. ^ "Petition for writ of certiorari" (PDF). Equal Citizens. Retrieved October 18, 2019.
  68. ^ a b Paul, Jesse (August 21, 2019). "Colorado's presidential electors don't have to vote for candidate who wins the state, federal appeals court rules". The Colorado Sun. Archived from the original on August 22, 2019. Retrieved August 28, 2019. The decision in the "faithless electors" case could have major ramifications for future presidential elections in the U.S. and could ultimately go to the U.S. Supreme Court for review
  69. ^ Gabriel, Trip (August 22, 2019). "Electoral College Members Can Defy Voters' Wishes, Court Rules". The New York Times. ISSN 0362-4331. Retrieved October 29, 2019.
  70. ^ "Colorado asks U.S. Supreme Court to overturn decision allowing presidential electors to vote for whomever they want". The Colorado Sun. On October 16, 2019, the Colorado appealed
  71. ^ "Petition for writ of certiorari" (PDF). Colorado Attorney General. Retrieved October 18, 2019.
  72. ^ Williams, Pete (January 17, 2020). "'Faithless elector': Supreme Court will hear case that could change how presidents are chosen". NBC News. Retrieved January 17, 2020.
  73. ^ Miller, Blair (March 10, 2020). "Justice Sotomayor recuses from Colorado 'faithless electors' Supreme Court case". KMGH-TV. Retrieved March 10, 2020.
  74. ^ Chiafalo et al. v. Washington, Text.

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