With a total of 538 electoral votes up for grabs, the Electoral College will meet in December to determine who will be president in 2021. But, some wonder whether electors must vote for the candidate who won their state or whether they can break ranks and cast the votes for another person.
THE QUESTION
Are electors bound by their state’s vote for president or can they cast the state’s electoral votes for someone else?
THE ANSWER
Yes and no. It depends on the state, and a recent U.S. Supreme Court ruling has weighed in on the side of penalizing rogue, or “faithless,” electors who don’t vote as pledged.
WHAT WE FOUND
All but two states cast winner-take-all electoral votes. That means if a candidate wins 51% of the vote, all the electoral votes from that state go to them. The exceptions are Maine and Nebraska where the electoral votes are split among the candidates.
According to a Congressional Research Service report, 33 states and the District of Columbia require electors to vote for the candidate who won their state.
Of the states that bind their electors to the presidential vote outcome, 14 states cancel the vote and replace the faithless elector who strays. Five other states impose penalties such as fines on the elector; two states both replace and penalize the elector.
But 16 states and the District of Columbia, despite binding their electors, have no penalty for casting a “deviant” vote, which is allowed to stand.
The states that bind electors got some backup in July, when the U.S. Supreme Court ruled in Chiafalo vs. Washington that they can penalize faithless electors.
“The Supreme Court decision did not grant states any new powers; it technically just upheld state laws that impose such punishment,” said Nicolas Riley, senior counsel at the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center. “So basically, each state would still need to have its own state law on the books penalizing faithless electors in order to actually do so.”
Faithless electors have never changed the outcome of a presidential election, FairVote says. They also have been rare, says the history webpage of the U.S. House, counting 15 for president and six for vice president since the 1940s.
“But in this chaotic election year, their potential to disrupt the presidential election may loom larger,” says Russell Wheeler, a Brookings Institution visiting fellow in governance studies, in the online article “Can the Electoral College Be Subverted by Faithless Electors?” “As a further twist, state legislatures in battleground states might try to replace state-certified electors with alternative slates of faithless-elector equivalents.”
Should the election not be clearly decided by the electors, the U.S. House of Representatives could decide who becomes president, as it did in the 1800 and 1824 elections, the House history site says.
In that case, a “contingent election” would be held after an Electoral College deadlock or if no candidate receives the majority of votes. Then each state delegation would cast “one vote for one of the top three contenders to determine a winner.”
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