Faithless electors in the United States presidential election, 2016
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In the
2016 United States presidential election United States presidential election, Presidential elections were held in the United States on November 8, 2016. The Republican Party (United States), Republican ticket of businessman Donald Trump and Indiana Governor, Indiana governor Mike P ...
, ten members of the Electoral College voted or attempted to vote for a candidate different from the ones to whom they were pledged. 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. 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. As a result of the seven successfully cast faithless votes, the Democratic Party nominee,
Hillary Clinton Hillary Diane Rodham Clinton ( Rodham; born October 26, 1947) is an American politician, lawyer and diplomat. She was the 67th United States secretary of state in the administration of Barack Obama from 2009 to 2013, a U.S. senator represent ...
, lost five of her pledged electors while the Republican Party nominee and then president-elect,
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who is the 47th president of the United States. A member of the Republican Party (United States), Republican Party, he served as the 45 ...
, lost two. Three of the faithless electors voted for
Colin Powell Colin Luther Powell ( ; – ) was an Americans, American diplomat, and army officer who was the 65th United States secretary of state from 2001 to 2005. He was the first African-American to hold the office. He was the 15th National Security ...
while John Kasich, Ron Paul,
Bernie Sanders Bernard Sanders (born September8, 1941) is an American politician and activist who is the Seniority in the United States Senate, senior United States Senate, United States senator from the state of Vermont. He is the longest-serving independ ...
, and
Faith Spotted Eagle Faith Spotted Eagle (Dakota language, Dakota: or "Standing Stone"; born 1948) is an American activist and politician. She is a citizen of the Yankton Sioux Tribe who attempted to block development of the Keystone XL pipeline and the Dakota Acc ...
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). The faithless electors who opposed Donald Trump were part of a movement dubbed the "Hamilton Electors" co-founded by Micheal Baca of
Colorado Colorado is a U.S. state, state in the Western United States. It is one of the Mountain states, sharing the Four Corners region with Arizona, New Mexico, and Utah. It is also bordered by Wyoming to the north, Nebraska to the northeast, Kansas ...
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 House of Representatives is the name of legislative bodies in many countries and sub-national entities. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often ...
. 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 Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Fathers of the United States, Founding Father who served as the first U.S. secretary of the treasury from 1789 to 1795 dur ...
in No. 68 of ''
The Federalist Papers ''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The ...
''. 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. 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. The Washington elector who voted for Spotted Eagle did so in protest of Clinton's support for the Dakota Access Pipeline; the vote made Spotted Eagle the first Native American to ever receive an Electoral College vote for president, as well as one of the first two women, along with Clinton, to receive one. 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 James Madison (June 28, 1836) was an American statesman, diplomat, and Founding Fathers of the United States, Founding Father who served as the fourth president of the United States from 1809 to 1817. Madison was popularly acclaimed as the ...
in the 1808 election. This number of defections has been exceeded only once: in
1872 Events January * January 12 – Yohannes IV is crowned Emperor of Ethiopia in Axum, the first ruler crowned in that city in over 500 years. *January 20 – The Cavite mutiny was an uprising of Filipino military personnel of Fort S ...
, a record 63 of 66 electors who were originally pledged to losing candidate
Horace Greeley Horace Greeley (February 3, 1811 – November 29, 1872) was an American newspaper editor and publisher who was the founder and newspaper editor, editor of the ''New-York Tribune''. Long active in politics, he served briefly as a congres ...
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.


Background

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 Maine ( ) is a U.S. state, state in the New England region of the United States, and the northeasternmost state in the Contiguous United States. It borders New Hampshire to the west, the Gulf of Maine to the southeast, and the Provinces and ...
and
Nebraska Nebraska ( ) is a landlocked U.S. state, state in the Midwestern United States, Midwestern region of the United States. It borders South Dakota to the north; Iowa to the east and Missouri to the southeast, both across the Missouri River; Ka ...
the winner of each congressional district receives one elector and the statewide winner receives two. The electors, once selected, are free under
federal law Federal law is the body of law created by the federal government of a country. A federal government is formed when a country has a central government as well as regional governments, such as subnational states or provinces, each with constituti ...
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 Washington, D.C., formally the District of Columbia and commonly known as Washington or D.C., is the capital city and Federal district of the United States, federal district of the United States. The city is on the Potomac River, across from ...
had laws requiring their electors to vote for their pledged candidate, and courts had issued conflicting opinions regarding the constitutionality of those laws. The supremacy clause established by the
Constitution of the United States The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
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 Events January * January 1 ** The Reichsbank opens in Berlin. ** The Bass Brewery Red Triangle becomes the world's first registered trademark symbol. *January 27 – The Northampton Bank robbery occurs in Massachusetts. February * Febr ...
, 1888,
2000 2000 was designated as the International Year for the Culture of Peace and the World Mathematics, Mathematical Year. Popular culture holds the year 2000 as the first year of the 21st century and the 3rd millennium, because of a tende ...
, and
2016 2016 was designated as: * International Year of Pulses by the sixty-eighth session of the United Nations General Assembly. * International Year of Global Understanding (IYGU) by the International Council for Science (ICSU), the Internationa ...
) 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 House of Representatives is the name of legislative bodies in many countries and sub-national entities. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often ...
under certain constitutional guidelines. In
1824 Events January–March * January 1 – John Stuart Mill begins publication of The Westminster Review. The first article is by William Johnson Fox * January 8 – After much controversy, Michael Faraday is finally elected as a member of th ...
the candidate with the highest popular vote (
Andrew Jackson Andrew Jackson (March 15, 1767 – June 8, 1845) was the seventh president of the United States from 1829 to 1837. Before Presidency of Andrew Jackson, his presidency, he rose to fame as a general in the U.S. Army and served in both houses ...
) also had the most electoral votes but, crucially, did not have a majority in the Electoral College. Despite
John Quincy Adams John Quincy Adams (; July 11, 1767 – February 23, 1848) was the sixth president of the United States, serving from 1825 to 1829. He previously served as the eighth United States secretary of state from 1817 to 1825. During his long diploma ...
having lost the popular vote and having received fewer electoral votes than Andrew Jackson, the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entities. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often ...
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, garnering the requisite number of faithless electors was thought to be extremely unlikely, as electors tend to be dignitaries with long histories in their respective party, and have historically voted for their pledged candidate over 99% of the time. On November 16, 2016, journalist Bill Lichtenstein published an article 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. Lichtenstein's article soon went viral, and on December 5, 2016, several members of the electoral college, seven from the Democratic Party and one from the Republican Party, publicly stated their intention to vote for a candidate other than the pledged nominees at the Electoral College vote on December 19, 2016.
Texas Texas ( , ; or ) is the most populous U.S. state, state in the South Central United States, South Central region of the United States. It borders Louisiana to the east, Arkansas to the northeast, Oklahoma to the north, New Mexico to the we ...
Republican elector Christopher Suprun publicly pledged to not cast his vote for
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who is the 47th president of the United States. A member of the Republican Party (United States), Republican Party, he served as the 45 ...
as allowed by Texas state law. 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 itness for presidenttest that we could all get behind." 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. Georgia Republican elector Baoky Vu resigned in August in the face of reaction to his public statement that he would not vote for Trump. Both Sisneros and Vu served in states that lacked any laws preventing electors from faithlessness. 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. The
Republican National Committee The Republican National Committee (RNC) is the primary committee of the Republican Party of the United States. Its members are chosen by the state delegations at the national convention every four years. It is responsible for developing and pr ...
mounted an expansive whip operation to ensure that all those electors selected to vote for the Republican nominee indeed did so. 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."


Public outreach to electors

On December 14, the Unite For America campaign released a video published on
YouTube YouTube is an American social media and online video sharing platform owned by Google. YouTube was founded on February 14, 2005, by Steve Chen, Chad Hurley, and Jawed Karim who were three former employees of PayPal. Headquartered in ...
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, including Debra Messing,
Martin Sheen Ramón Gerard Antonio Estévez (born August 3, 1940), known professionally as Martin Sheen, is an American actor. His work spans over six decades of television and film, and his accolades include three Emmy Awards, a Golden Globe Award, and ...
, and
Bob Odenkirk Robert John Odenkirk (; born October 22, 1962) is an American actor, screenwriter, comedian, and producer. He started his career as a comedian and comedy writer before expanding his career by acting in dramatic works. His List of awards and no ...
, 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." 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 GoFundMe is an American for-profit crowdfunding platform that allows people to raise money for events ranging from life events such as celebrations and graduations to challenging circumstances like accidents and illnesses. From 2010 to the ...
campaign ran in ''
The Washington Post ''The Washington Post'', locally known as ''The'' ''Post'' and, informally, ''WaPo'' or ''WP'', is an American daily newspaper published in Washington, D.C., the national capital. It is the most widely circulated newspaper in the Washington m ...
'', ''
The Philadelphia Inquirer ''The Philadelphia Inquirer'', often referred to simply as ''The Inquirer'', is a daily newspaper headquartered in Philadelphia, Pennsylvania. Founded on June 1, 1829, ''The Philadelphia Inquirer'' is the third-longest continuously operating da ...
'', the ''
Austin American-Statesman The ''Austin American-Statesman'' is the major daily newspaper for Austin, the capital city of the U.S. state of Texas. It is owned by Hearst Communications. The distribution of the following ''The New York Times'', ''The Washington Post'', '' ...
'', '' The Salt Lake Tribune'', and the ''
Tampa Bay Times The ''Tampa Bay Times'', called the ''St. Petersburg Times'' until 2011, is an American newspaper published in St. Petersburg, Florida, United States. It is published by the Times Publishing Company, which is owned by The Poynter Institute ...
''. Full-page ads ran the next day, December 15, in '' The Atlanta Journal-Constitution'' and the '' Wisconsin State Journal''. On December 11, Democratic US Representative Jim Himes of
Connecticut Connecticut ( ) is a U.S. state, state in the New England region of the Northeastern United States. It borders Rhode Island to the east, Massachusetts to the north, New York (state), New York to the west, and Long Island Sound to the south. ...
wrote on
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that Trump is "completely unhinged" and "the Electoral College must do what it was designed for." Himes said he made the plea to the Electoral College because Trump refused to say that the Russians hacked Democrats during the election.


Legal counsel and advocacy

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 Harvard University is a Private university, private Ivy League research university in Cambridge, Massachusetts, United States. Founded in 1636 and named for its first benefactor, the History of the Puritans in North America, Puritan clergyma ...
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) would be provided anonymously. Litigation is a component of Lessig's Equal Citizens movement. Lessig and Boston attorney R. J. Lyman created a
nonprofit organization A nonprofit organization (NPO), also known as a nonbusiness entity, nonprofit institution, not-for-profit organization, or simply a nonprofit, is a non-governmental (private) legal entity organized and operated for a collective, public, or so ...
called Electors Trust to provide potential faithless electors with ''pro bono'' legal assistance.


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 Colorado is a U.S. state, state in the Western United States. It is one of the Mountain states, sharing the Four Corners region with Arizona, New Mexico, and Utah. It is also bordered by Wyoming to the north, Nebraska to the northeast, Kansas ...
, Washington, and
California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...
, but federal judges declined to issue injunctions blocking these laws, and there was insufficient time to appeal to the
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
before the electoral college vote. However, in '' Baca v. Hickenlooper'' a three-judge panel of the
United States Court of Appeals for the Tenth Circuit The United States Court of Appeals for the Tenth Circuit (in case citations, 10th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts: * District of Colorado * District of Kansas * Dist ...
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." While at the time of the election the constitutionality of faithless electors had not yet been addressed by the
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
, in '' Ray v. Blair'', 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: In his dissent, Justice Robert H. Jackson, joined by Justice William O. Douglas, wrote:


Recorded faithless electors


Validated


Invalidated


Recipients of votes

;President Colin Powell official Secretary of State photo.jpg, Former Secretary of State
Colin Powell Colin Luther Powell ( ; – ) was an Americans, American diplomat, and army officer who was the 65th United States secretary of state from 2001 to 2005. He was the first African-American to hold the office. He was the 15th National Security ...
, 3 votes Bernie Sanders.jpg, Senator
Bernie Sanders Bernard Sanders (born September8, 1941) is an American politician and activist who is the Seniority in the United States Senate, senior United States Senate, United States senator from the state of Vermont. He is the longest-serving independ ...
, 1 vote (plus 2 invalidated) Governor John Kasich.jpg, Governor John Kasich, 1 vote (plus 1 invalidated) Faith Spotted Eagle (cropped).png, Activist
Faith Spotted Eagle Faith Spotted Eagle (Dakota language, Dakota: or "Standing Stone"; born 1948) is an American activist and politician. She is a citizen of the Yankton Sioux Tribe who attempted to block development of the Keystone XL pipeline and the Dakota Acc ...
, 1 vote Ron Paul, official Congressional photo portrait, 2007.jpg, Former representative Ron Paul, 1 vote
;Vice President Elizabeth Warren by Gage Skidmore.jpg, Senator Elizabeth Warren, 2 votes Maria Cantwell, official portrait, 110th Congress.jpg, Senator Maria Cantwell, 1 vote Susan Collins official Senate photo.jpg, Senator
Susan Collins Susan Margaret Collins (born December 7, 1952) is an American politician serving as the senior United States senator from Maine. A member of the Republican Party, she has held her seat since 1997 and is Maine's longest-serving member of ...
, 1 vote Carly Fiorina by Gage Skidmore 3.jpg, Business executive
Carly Fiorina Cara Carleton "Carly" Fiorina (; ; born September 6, 1954) is an American businesswoman and politician, known primarily for her tenure as chief executive officer (CEO) of Hewlett-Packard (HP) from 1999 to 2005. Fiorina was the first woman to le ...
, 1 vote Winona duke dream reborn.png, Economist Winona LaDuke, 1 vote File:Tulsi Gabbard, official portrait, 113th Congress (cropped 3).jpg, Representative
Tulsi Gabbard Tulsi Gabbard (; born April 12, 1981) is an American politician and military officer serving as the director of National Intelligence, director of national intelligence (DNI) since 2025. She has held the rank of Lieutenant colonel (United Stat ...
(1 invalidated vote)


Legal challenges

The four faithless electors from Washington were each fined $1,000 for breaking their pledge. Three of the electors appealed the fines, which were upheld by the
Washington Supreme Court The Washington Supreme Court is the highest court in the judiciary of the U.S. state of Washington (state), Washington. The court is composed of a chief justice and eight associate justices. Members of the court are elected to six-year terms. ...
in May 2019 by an 8–1 vote. On October 7, 2019, the electors unsuccessfully appealed their case, ''
Chiafalo v. Washington ''Chiafalo v. Washington'', , was a United States Supreme Court case on the issue of "faithless electors" in the United States Electoral College, Electoral College stemming from the 2016 United States presidential election. The Court ruled unan ...
'', to the U.S. Supreme Court. 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. On August 20, 2019, a three-judge panel ruled 2–1 in favor of the electors. On October 16, 2019, Colorado appealed the 10th Circuit's decision to the Supreme Court. The Supreme Court granted
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of a prerogative writ in England, issued by a superior court to direct that the recor ...
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. Oral arguments in both cases had been scheduled for April, but were subsequently postponed due to the
COVID-19 pandemic The COVID-19 pandemic (also known as the coronavirus pandemic and COVID pandemic), caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), began with an disease outbreak, outbreak of COVID-19 in Wuhan, China, in December ...
. 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.


See also

*
Election Assistance Commission The Election Assistance Commission (EAC) is an independent agency of the United States government created by the Help America Vote Act of 2002 (HAVA). The Commission serves as a national clearinghouse and resource of information regarding elec ...
* List of 2016 United States presidential electors, the people chosen at state-by-state political party conventions during the Republican and Democratic primaries to be electors in this election cycle * Unpledged elector


Notes


References


External links


Hamilton Electors websiteUnite For America website
{{Never Trump movement Controversies of the 2016 United States presidential election December 2016 in the United States
2016 2016 was designated as: * International Year of Pulses by the sixty-eighth session of the United Nations General Assembly. * International Year of Global Understanding (IYGU) by the International Council for Science (ICSU), the Internationa ...
Reactions to the election of Donald Trump Never Trump movement