Q&A of the Day – How many states allow “Faithless Electors”?
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Today’s entry: @brianmuddradio...How many States require their Electors to follow their Popular Vote tally? In '16 we had a month of Celebrities begging Electors to 'Vote their Conscience'.
Bottom Line: Faithless electors have been an on again off again conversation since the Florida 2000 election. While there were faithless electors lured by celebrities and others four years ago as you referenced, the conversation was at the forefront of the 2000 election as well. Not only did George W. Bush lose the national popular vote, his contested win of Florida but just over 500 votes placed him just over the threshold of Electoral College votes needed to win the Presidency. Nearly as close as the Florida vote, was the final Electoral College margin as Bush won 271-266. Had just two “faithless” electors peeled off Bush in 2000, he wouldn’t have won the election. As it turned out the only “faithless elector” in 2000 was ironically a would-be Gore voter from Washington D.C. The D.C. voter didn’t vote in the Electoral College as a means of protesting the Supreme Court’s ruling ending the questionable recounts in Broward and Palm Beach Counties.
2016 resulted in the largest number of faithless electors, 10, since the 1896 Presidential Election. Though it’s largely forgotten because of the size of Donald Trump’s Electoral College win 304-227, six states featured faithless electors with Colin Powell receiving three votes, Bernie Sanders and John Kasich received two and one each for Ron Paul and Faith Spotted Eagle (a Native tribal leader in Washington state). You can probably win some future trivia games if you can remember all of that... So, about the states which allow for faithless electors.
33 states and D.C. have laws which mandate electors vote according to their state or District’s popular vote. This includes Florida. These laws were recently challenged before the U.S. Supreme Court which ruled in favor of state’s right to outlaw faithless electors. There’s a but however... 16 of the states, including Florida, ban faithless electors but don’t impose any penalties for those who’d break the law. So, I suppose it’s up to you to decide if they count or not?
Interestingly, there are two current contested states which don’t have bans for faithless electors – Pennsylvania and Georgia. Three others- Arizona, Michigan and Wisconsin have bans but no penalties. The only contested state which has fully accounted for faithless electors is Nevada where a faithless elector is banned, and they’re replaced should they vote differently than the state’s popular vote. Your mind can go wild with the prospect of mass faithless electors this year, but should the states finalize their vote totals for the candidates shown leading right now. Biden would show a 306-232 Electoral College advantage-based state popular vote totals – ironically the exact margin between Trump and Clinton four years ago. Should that be the case you’d have to have 37 Biden electors peel off and vote for someone other than him. There is just one election, 1872, with enough faithless electors to potentially impact this size of an Electoral College advantage. In 1872, there were 63 faithless electors. So, I guess if you were to literally look at the view of the possible the odds would be 1 in 45. The reality of it playing out this cycle would almost certainly be lower than those 2.2% odds.
It’s an important topic to understand. The history, even recent, is interesting and it could be helpful for the purpose of proposing reforms to state laws – including adding teeth to Florida’s law – if you’d like to see that happen. In reality, even if we have faithless electors again this year – they'll be as forgettable as those from four years ago.
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