As all Americans well know, the 2000 presidential election has been unable (as this article goes to press) to elect a president. Still, it has been able to clear up several misconceptions about selecting the nation's chief executive.
For one thing, voters now better understand that they don't vote directly for presidential candidates but choose “electors” who have pledged to back presidential candidates.
Voters also know now that the popular-vote winner in a state doesn't win the state's electoral votes. Rather, the candidate wins the state's slate of electors, who cast their votes on the first Monday after the third Wednesday in December -- Dec. 18 this year.
The Framers of the Constitution intended electors to be worldly, deeply learned individuals who could exercise independent judgment. In recent years, though, electors have more often than not been party stalwarts who almost invariably backed the party nominee.
Occasionally, however, renegade electors -- known as “faithless electors” -- vote for another candidate. Of the more than 21,000 electoral votes cast in American history, fewer than a dozen were cast against instructions. Those instances, however rare, have raised questions as to whether electors are rubber stamps for their pledged candidate or are free agents who are free under the Constitution to vote as they wish.
Faithless electors have been around since at least 1796, when a Pennsylvania voter criticized a Federalist elector who voted for Thomas Jefferson instead of John Adams, the Federalist candidate: “Do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be president? No, I chuse him to act, not to think.”
On Jan. 6, 1969, when Congress counted the electoral votes from the 1968 election won by Republican Richard M. Nixon, Sen. Edmund S. Muskie, D-Maine, and Rep. James O'Hara, D-Mich., challenged -- to no avail -- a vote cast for independent candidate George C. Wallace by North Carolina ophthalmologist Lloyd Bailey, a Republican elector whose state Nixon carried. Bailey, a member of the ultraconservative John Birch Society, said that he had planned to vote for Nixon but didn't because he opposed some of Nixon's presidential appointments.
Faithless electors could conceivably have changed the outcome of the 1976 race between Republican incumbent Gerald R. Ford and Democratic challenger Jimmy Carter. The race was so close -- Carter won the electoral tally by 297-240 and the popular tally by 50-48 percent -- that a shift of 9,246 votes in Ohio and Hawaii would have elected Ford president.
Bob Dole, who was Ford's vice-presidential running mate, candidly admitted the following year that Ford's campaign was preparing to sound out potential faithless electors if Ford had carried Ohio and brought the GOP ticket to within a few electoral votes of the 270 needed.
“We were shopping -- not shopping, excuse me -- looking around for electors,” Dole told the Senate Judiciary Committee. “[I]t just seems to me that the temptation is there for [electors] in a very tight race to really negotiate quite a bunch.”
There was one faithless elector in 1976 -- Mike Padden, a Republican elector from Washington state, who voted for Ronald Reagan instead of Ford because he felt Ford was not sufficiently opposed to abortion. The most recent faithless elector appeared in 1988, when West Virginia Democrat Margaret Leach voted for Democratic vice-presidential candidate Lloyd Bentsen for president instead of presidential candidate Michael S. Dukakis.
As the 2000 presidential election inched toward a conclusion, neither presidential candidate had a majority of electoral votes, increasing the possibility that faithless electors could play a role. A victory by George W. Bush in Florida would give the Republican 271 electoral votes to Democrat Al Gore's 267 electoral votes -- just one vote more than the 270 needed to win.
Perhaps the most controversial move to attract renegade electors was initiated by Democratic strategist Bob Beckel, who sought to inform some GOP electors that they could vote for any candidate they wanted. But Gore said that he would not accept any renegades' votes.
Robert Lipkin, a law professor at Widener University in Chester, Pa., says that any Republican electors who vote for popular-vote winner Gore, which he said was unlikely, would be “both in line with the intent of the Framers and also out of line with it.”
“They will be on the one hand voting out of a sense of conscience, which is what the Founding Fathers wanted them to do. But not to vote for the man who won the popular vote -- that's what they didn't want them to do,” Lipkin says.
Today, 29 states and the District of Columbia have laws binding electors to the popular-vote winners. But no faithless elector has ever been sanctioned, and many scholars say that those laws would not pass constitutional muster.
“Once electors are selected,” says Glenn Reynolds, a law professor at the University of Tennessee, “states don't have the power to tell them how to act.”
Indeed, Reynolds calls the term faithless elector a misnomer, arguing that “an elector who changes his or her mind is no more faithless than a member of Congress who campaigns on a platform of tax cuts and winds up voting for a tax increase.”