The day is finally here — December 19, 2016 — the day the Electoral College meets at state capitols across the country in the hopes of making this crazy 2016 election official. All the talk about what could or may happen is about to be over, hopefully.
However, this is the 2016 election, so nothing is over until it’s actually over. Along those lines, you’ll likely hear a ton of talk about so-called “faithless” electors over the next 12 hours. Some believe that is the only way to prevent a Donald Trump presidency. Although, most will admit it is a long shot. If you want to watch the action live, check out our guide on how to watch the Electoral College meet state-by-state.
Part of the reason is because 30 states and D.C have laws requiring Electors to vote for their state’s popular vote winner. Now, the constitutionality of such laws is up in the air. Nonetheless, LawNewz.com went ahead and made a complete list of states that bind electors to the statewide general election results. Have a look:
Alabama — Code of Ala. §17-19-2 states that each elector is required to sign a statement that is turned into the Secretary of State’s office which says “”I do hereby consent and do hereby agree to serve as elector for President and Vice-President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such elector for Donald Trump for President and Mike Pence for Vice-President of the United States.”
Alaska — (Stat. §15.30.040) provides the “party shall require from each candidate for elector, a pledge that as an elector the person will vote for the candidates nominated by the party of which the person is a candidate.”
Another statute, §15.30.090, also provides “any vacancies have been filled, the electors shall proceed to cast their votes for the candidates for the office of President and Vice-President of the party that selected them as candidates for electors . . .”
California — (Election Code §6906) provides “electors … shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent . . . ”
Colorado — (CRS §1-4-304) “Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.”
Connecticut — (Conn. Gen. Stat. §9-176) provides electors shall meet at the Secretary of the State’s office at noon on December 19, 2016, and “as required by the Constitution and laws of the United States, shall cast their ballots for President and Vice President.”
“Each such elector shall cast his ballots for the candidates under whose names he ran on the official election ballot, as provided in section 9-175.” In the event there is a vacancy . . . “the electors present shall, before voting for President and Vice President, elect by ballot an elector to fill such vacancy, and the person so chosen shall be a presidential elector, shall perform the duties of such office and shall cast his ballots for the candidates to whom the elector he is replacing was pledged.”
Delaware — (15 Del C §4303) provides “electors chosen or appointed in this State for the election of a President and Vice-President of the United States shall meet and give their votes at Dover on the day determined by Congress for that purpose.” — Dec.19, 2016
Furthermore, Delaware law requires in all cases that “electors chosen or appointed in this State for the election of a President and Vice-President of the United States under this chapter shall be required to cast their individual votes in accordance with the plurality vote of the voters in this State.”
District of Columbia — (§ 1–1001.10) provides “electors of President and Vice President of the United States shall be elected on the Tuesday next after the 1st Monday in November in every 4th year succeeding every election of a President and Vice President of the United States.”
“Each vote cast for a candidate for President or Vice President whose name appears on the general election ballot shall be counted as a vote cast for the candidates for presidential electors of the party supporting such presidential and vice presidential candidate. Candidates receiving the highest number of votes in such election shall be declared the winners, except that in the case of a tie it shall be resolved in the same manner as is provided in subsection (c) of this section.”
Florida — (Fla. Stat. §103.021(1)) provides an elector “shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent.”
The governor then certifies the names of the electors by party to the sectary of state by September 1 of election year.
In the event an elector is deemed unable to serve, “the Governor may appoint a person to fill such vacancy who possesses the qualifications required for the elector to have been nominated in the first instance.”
The replacement elector shall “file with the Governor an oath that he or she will support the same candidates for President and Vice President that the person who is unable to serve was committed to support.”
Hawaii — (HRS §14-28) provides “electors, when convened, if both candidates are alive, shall vote by ballot for that person for president and that person for vice president of the United States, who are, respectively, the candidates of the political party or group which they represent.”
Maine — (21-A MRS §805) provides “presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district.”
Maryland — (Md Ann Code art 33, §8-505) provides “individuals elected to the office of presidential elector shall meet in the State House in the City of Annapolis on December 19, 2016.”
Electors take “the oath prescribed by Article I, § 9 of the Maryland Constitution before the Clerk of the Court of Appeals or, in the Clerk’s absence, before one of the Clerk’s deputies, the presidential electors shall cast their votes for the candidates for President and Vice President who received a plurality of the votes cast in the State of Maryland.”
Massachusetts — (MGL, ch. 53, §8) provides “a list of the persons nominated for presidential electors, together with an acceptance in writing signed by each candidate for presidential elector on a form to be provided by the state secretary, shall be filed by the state chairmen of the respective political parties not later than the second Tuesday of September. Said acceptance form shall include a pledge by the presidential elector to vote for the candidate named in the filing.”
Michigan — (MCL §168.47) provides electors meet on December 16, 2016 at 2:00 p.m. in the senate chamber of the state capitol. Anytime within 48 hours of that meeting, an elector may submit his resignation to the governor. However, “[f]ailure to so resign signifies consent to serve and to cast his vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated him.
“Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy.”
In the event of a vacancy, “the qualified electors of president and vice-president shall proceed to fill such vacancy by ballot, by a plurality of votes” and after the vacancy is filled, the electors “shall proceed to perform the duties of such electors, as required by the constitution and laws of the United States.”
Mississippi — (Miss Code Ann §23-15-785) provides each elector shall provide the following filed statement with the State Board of Election Commissioners: “I do hereby consent and do hereby agree to serve as elector for President and Vice President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such for ․․․․․․․․․․ for President and ․․․․․․․․․․ for Vice President of the United States” (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached).
Montana (MCA §113-25-304) provides and elector must sign a pledge stating, “If selected for the position of elector, I agree to serve and to mark my ballots for president and vice president for the nominees of the political party that nominated me.” The executed pledges must accompany the submission of the corresponding names to the secretary of state under 13-25-101(1).
“An elector who refuses to present a ballot, presents an unmarked ballot, or presents a ballot in violation of the elector’s pledge executed under 13-25-304 . . . vacates the office of elector, creating a vacant position to be filled . . . when the “secretary of state shall distribute ballots to and collect ballots from a substitute elector and repeat the process specified in this section until all of the electoral votes have been cast and recorded.”
Nebraska — (§32-714) provides an elector signs a pledge promising to “agree to serve and to mark my ballots for President and Vice President for the presidential and vice-presidential candidates who received the highest number of votes in the state if I am an at-large presidential elector or the highest number of votes in my congressional district if I am a congressional district presidential elector”.
An “elector who refuses to present a ballot, who attempts to present an unmarked ballot, or who attempts to present a ballot marked in violation of his or her pledge vacates the office of presidential elector.”
Nevada — (NRS §298.075) provides the elector “shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President.”
If the elector fails to mark the statewide winner for president and vide president, the secretary of state “shall refuse to accept either ballot of the presidential elector; and . . . shall deem the presidential elector’s position vacant.”
The vacancy is then filled by an elector who will fill out the ballot properly.
New Mexico — (NM Stat Ann §1-15-9) provides all elector” shall cast their ballots in the electoral college for the candidates of the political party which nominated them as presidential electors.”
If a “faithless” elector fails cast his ballot for the winner of the state popular vote, he is guilty of a fourth degree felony.
North Carolina — (NC Gen Stat §163-212) provides any elector who “previously signified his consent to serve as such, who fails to attend and vote for the candidate of the political party which nominated such elector, for President and Vice-President of the United States at the time and place directed in G.S. 163-210 (except in case of sickness or other unavoidable accident) shall forfeit and pay to the State five hundred dollars ($500.00), to be recovered by the Attorney General in the Superior Court of Wake County.”
“In addition to such forfeiture, refusal or failure to vote for the candidates of the political party which nominated such elector shall constitute a resignation from the office of elector, his vote shall not be recorded, and the remaining electors shall forthwith fill such vacancy as hereinbefore provided.”
Ohio — (ORC Ann §3505.40) provides a “presidential elector . . . 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.”
Oklahoma — (26 Okl St §10-102) provides each party nominee for an elector” shall subscribe to an oath, stating that said nominee, if elected, will cast a ballot for the persons nominated for the offices of President and Vice President by the nominee’s party.”
“Refusal or failure to vote by a Presidential Elector for the persons nominated for the offices of President and Vice President by the nominee’s party shall constitute a violation of the oath and shall result in the immediate forfeiture of the Elector’s office. In such event, the vote shall not be recorded, a vacancy shall be declared, and the Presidential Electors present shall proceed to fill such vacancy as provided in Section 10-108 of this title.”
Oregon — (ORS §248.355) provides all candidates to be electors to sign pledges that, “if elected, the candidate will vote in the electoral college for the candidates of the party for President and Vice President.”
The state parties shall certify the names of the selected candidates for elector to the Secretary of State not later than the 70th day before the election”
South Carolina — (SC Code Ann §7-19-80) provides each presidential elector shall declare to the secretary of state at least 60 days prior to the general election for electors which candidate for presidential they will vote for, and if elected and they shall then vote for whom they declared. If a person is selected to fill a vacancy in the electoral college, that person shall vote for the candidate the original elector declared for.
If an elector votes for someone other than their declared candidate, the state attorney general is required to bring a criminal action against the person, who shall be deemed guilty of violating South Carolina election law. Upon, conviction, the “ rogue” or “faithless” elector shall be punished according to state law.
However, there is one final quirk this statute that provides the executive committee of the party may relieve an elector from his obligation to vote for his declared candidate “when, it its best judgment, circumstances have arisen which, in the opinion of the committee, it would not be in the best interest of the state for the elector to cast its ballot for the declared candidate” emphasis added.
Utah — (Utah Code Ann §20A-13-304) provides the electors shall meet at the office of the lieutenant governor on the day designated by the United States Congress (December 19) in order to convene and perform their legal and Constitutional duties. Any “faithless” elector who does not cast a ballot for the for the person nominated by the party of the elector (the winner of the statewide vote), is treated as though he resigned as an elector and his vote does not count. The remaining electors then select a replacement to fill the vacancy.
Utah does allow its electors to vote for someone other than the statewide winner in rare circumstances such as death of the winner or if the winner is convicted of a felony, presumably in between the election and December 19.
Vermont — (17 VSA §2732) provides electors meet at the state house on (December 19 this year) in order to cast vote for president and vice president of the United States. A refusal to vote for the statewide winner is considered a vacancy and the other electors present shall ensure it is filled at once, orally and by a plurality of votes.
Once all electors appear and any vacancies are filled, the electors then perform their Constitutional duties to cast votes for president and vice president. Furthermore, state law requires the electors “must vote for the candidates . . . who received the greatest number of votes at the general election.”
Virginia — (§24.2-203) provides electors hall convene at the capitol building of the Commonwealth at noon on December 19, 2016 and upon arrival, those electors shall immediately fill, by ballot and plurality of votes, any vacancy, including for failure to act. Once all electors are present and any vacancies are filled, the electors then perform their Constitutional duty of electing the president and vice president.
Virginia law requires its electors to vote for the presidential and vice presidential candidate who won the popular vote in the state.
Washington — (RCW §29.71.020)/RCW 29A.56.340 provides electors shall convene on December 19, 2016 at noon at the seat of government. Electors first must fill vacancies, including those electors who are refusing to act. The vacancies shall immediately be filled by voice vote, and a plurality of votes.
“When all of the electors have appeared and the vacancies have been filled they shall constitute the college of electors of the state of Washington, and shall proceed to perform the duties required of them by the Constitution and laws of the United States.”
A “faithless” elector “who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.”
Wisconsin — (Wis Stat §7.75) provides electors for president and vice president shall meet at the state capitol on December 19, 2016 at noon. A refusal to act is considered a vacancy and the electors present “shall immediately proceed to fill by ballot, by a plurality of votes, the electoral college vacancy.” After filling the vacancy and all electors are present, they shall perform their duties under the Constitution, which means voting by ballot for the president and vice president of the party who nominated them to be electors. In other words, they must vote for the statewide winner.
However, presidential electors in Wisconsin are required by law to vote for a candidate who it no longer living at the time on the electoral college meeting — December 19, 2016, this year.
Wyoming — (Wyo Stat §22-19-106-108) provides certified electors meet in the secretary of state’s office on December 19, 2016 this year at noon and a vacancy for “any cause shall be filled and certified by a majority of electors present.”
Once all electors are present and vacancies are filled, that group “shall constitute the college of electors of the state of Wyoming and shall perform duties as required by the constitution and laws of the United States.”
Wyoming law requires electors shall vote for the presidential and vice presidential candidates who received the highest statewide total of votes in the general election.
As you can see, there is very little uniformity in the laws across the 29 states and the District of Columbia, except for the requirement to cast the electoral college ballot for the popular vote winner.
According to an archive report on FairVote.org. the majority of “faithless electors” who have been willing in the past to violate their state’s laws binding them to a particular candidate have only faced misdemeanor charges, sometimes with a small fine not to exceed $1,000. There is some debate among constitutional legal experts on the legality of binding electoral college candidate state laws, but the question is far from settled.
[image via /shutterstock]
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