Fortier and Ornstein: How Faithless Elector Laws and COVID-19 Could Undermine Our Presidential Election

The following is a guest post from John Fortier and Norm Ornstein:

After 9/11, in the course of our work on continuity of government, we wrote a piece in the Election Law Journal, “If Terrorists Attacked our Presidential Election.”  A grim subject, of course, but the purpose was to think through the electoral timeline from primaries to Inauguration Day, how terrorist attacks leading to the death of the candidates might disrupt our electoral system–and what legal and constitutional tools we have to recover.

The dangers of disruption, of course, are not just from terrorists. In recent days, we have both been asked these same sorts of questions about the pandemic, especially with the President’s positive test and hospitalization. In particular, what would happen if the Covid illness of the President were severe enough that he chose  to withdraw from the presidential race (or what if he or another candidate were to die before the election.)  How would a replacement be selected?  Could the ballots be changed?  What would happen to the ballots already cast for the withdrawn candidate?

We wrestled with these questions in our ELJ piece, and the answers have held up pretty well. We said that political parties could select a replacement nominee and that the unlikelihood of changing the ballot at this late date would not disrupt the election because, in a presidential race, the people are really not voting for the nominees Biden or Trump, but are electing presidential electors for the electoral college, and that these slates of electors, loyal to their party, could cast their ballots for a replacement candidate who did not appear on the ballot.

But one thing has changed in recent years that makes replacing a presidential candidate more difficult.  Thirteen states have passed laws intended to ensure that presidential electors vote “faithfully,” that is, when they meet on December 14th to cast their votes in the electoral college, they vote the way their state voted on the November ballot (2 other states’ laws are understood to have given their secretary of state the power to enforce faithful elector pledges). 

These recent “faithless elector” laws are not the garden variety pledges that bind electors without any penalty or impose a small fine for electors who stray from their pledges.  They have real teeth.  The laws call for electors who vote “faithlessly” for another candidate to be removed immediately and replaced by an alternate elector who can then vote the correct way (Note that only North Carolina had a law like this when we wrote in 2004; fourteen other states have adopted this procedure, by law or direction, since).   In 2016, these laws kicked in, with one prominent example in Colorado where an elector pledged to Hillary Clinton voted for John Kasich, but was immediately replaced by an alternate elector who then voted faithfully for Hillary Clinton.

This summer the Supreme Court upheld these faithless electors laws, but did send a warning in a footnote that the issue of a dead candidate was problematic.  The Court surmised that states might not enforce these provisions in the case of a deceased candidate, all but urged states to enact an exception for deceased candidates (an exception that a few states do have) and noted that the Court had not ruled on the constitutionality of a pledge that binds electors to a deceased candidate.

So how could these faithless elector laws undermine the replacement of a withdrawn or deceased candidate? Let’s say that President Trump withdraws from the ticket sometime in October.  The Republican National Committee could convene and select a replacement ticket of, say, Pence-Rubio.  But Trump-Pence would remain on the election day ballot.  If Republicans prevailed in the election, they would face uncertainty as to what would happen on December 14th when the presidential electors meet.

 What if some electors voted for Mike Pence as President and others under the inflexible faithless elector provisions were forced to vote for the withdrawn or deceased Trump?  Democratic won states, of course would vote for Joe Biden. But no candidate would garner the required 270 EVs for a majority. This three way, no majority scenario would lead to a vote of the House of Representatives who would select a president (with voting by state delegation). It would be the new House, on January 6; currently, Republicans have majorities in 26 state delegations, but that, of course, could change. If no candidate got to 26, the new Senate, voting as individuals, would choose a Vice President who could serve as acting president when sworn in on January 20.

Another plausible scenario would be that Republican electors and those that replace them would simply refuse to vote for Donald Trump and that no slate of electors comes out of the official vote.  Perhaps a Republican controlled legislature would appoint a slate of electors directly for the Pence-Rubio ticket or perhaps multiple actors step in and appoint alternative slates, ultimately leaving Congress to resolve the very difficult situation of multiple slates of electors.

The uncertainty would extend to Congress counting the vote.  We have examples where Congress refused to count electors’ votes cast for deceased candidates.  In the case of losing presidential candidate Horace Greeley, who died before the electors met in the election of 1872, Congress refused to count the votes of three electors.  Here Congress could refuse to count the votes for Trump, again perhaps leading to a situation where no candidate would have a majority and an election by the House of Representatives.  Less likely, Congress might find a way to throw out entire slates of electors as not regularly given, which could lead to a reduction in the total number of electors cast and perhaps an electoral college majority for the losing candidates, in this case the Biden-Harris slate.  And again, perhaps Congress would get stuck in a deadlock over multiple slates of electors, unable to move because of divided government between the House and Senate.

All of these scenarios are unlikely if cooler heads prevail, but they might give a political party pause before attempting to select replacement candidates.  The uncertainty of what might happen makes the simple process of selecting replacements and instructing the electors to vote for the replacements less of a slam dunk.

Clarity in advance would make a big difference.  In the longer term, states should consider exceptions in their laws which would not force electors to vote for replaced or deceased candidates.  In the short term, states with laws without exceptions could indicate that they do not plan to enforce them in the case of a replacement ticket.  Without this kind of certainty, we will have added one more category of election meltdown to the already too long list.

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