For Whom Do Electors Vote?

2 For Whom Do Electors Vote? December 14, 2020 December 16, 2024 December 18, 2028 First Monday after second Wednesday in December Slates of electors are selected based on the popular vote for president in each state. Many electors, however, remain free—that is, not bound by the presidential vote. In many states, the electors are not bound at all; in other states that have attempted to bind their electors’ votes, recent court decisions have called into question the validity of binding electors. This freedom of the electors allows a good deal of room for bargain- ing between the November election and the meeting of the electors in mid-December if the election does not produce a majority in the Electoral College. For example, the electors for a third-party candidate who wins a plurality of the popular votes in one or more states could cast their ballots for one of the major-party candidates (or anyone else). In 1968, Hubert Humphrey could have asked his electors to vote for Richard Nixon, if Nixon had lacked an Electoral College majority, rather than see Nixon bargain with George Wallace. Thus, the Electoral College could well produce a winner in December who was not apparent on Election Day in November. Also, an elector might vote for a person who would not have otherwise received votes in order for there to be a third candidate for Congress to consider if no person has a majority. In 2016, electors cast presidential votes for John Kasich and Colin Powell under the theory that they might be considered by the House of Representatives if neither Hillary Clinton nor Donald Trump received a majority of electors. 9 10 AFTER THE PEOPLE VOTE How the Ballots Are Cast The electors appointed or chosen in November meet in their respective states in mid-December (December 14 in 2020, December 16 in 2024, and December 18 in 2028). Each elector casts two ballots, one for president and one for vice president. Although unknown to most of the public, the electors’ names are certified by the governor of each state to an official of the federal government, the archivist of the United States. A federal statute requires that this be done “as soon as practicable” after the November election. (See Appendix B, Section 6.) Thus, shortly after the November election, assuming there is no prolonged controversy, an official of the national government knows the names of the 538 persons eligible to meet in their respective states and the District of Columbia in December to vote for president and vice president. He or she also knows the number of popular votes cast for the successful and unsuccessful candidates for electors. The persons whose names appear in the certificates sent by the governors to Washington are the electors eligible to vote for president and vice president in December. As discussed in Chapter 1, any “controversy or contest” concerning the identity of these eligible electors should have been resolved by the states acting under state laws. The votes they cast, one for president and one for vice president, will be recorded in certificates, which will be sealed and sent to the president of the Senate and the archivist of the United States in Washington. (See Appendix B, Sections 9, 10, and 11.) What If State Recounts Are Not Complete When the Electors Vote? The statute that governs the electoral count gives states a large incen- tive to resolve their election controversies by six days before the electors vote, and, if they could not meet that “safe harbor” deadline, states would almost certainly try to resolve their election controversies by the day the electors vote, as they would risk losing their electoral votes otherwise. There is, however, a precedent of a state missing these deadlines. In 1960, the vote between Nixon and John F. Kennedy was close in Hawaii. Initially, the election was certified for Nixon, electors were appointed, and FOR WHOM DO ELECTORS VOTE? 11 they cast their votes for Nixon on the appointed day in mid-December. After a recount showed Kennedy to be the winner, the new results were certified on January 4, and a new slate of electors cast their votes for Kennedy. Vice President Nixon presided over the joint session of Congress that counted the votes and noted that while he had two slates of electors before him, the second one reflected political reality. He called for objec- tions, and when there were none, he counted the Kennedy electors.6 While this precedent exists, it would be up to a future Congress to decide whether to accept a later slate of electors submitted by a gover- nor over an earlier one. The 2000 election controversy showed how state recounts might extend beyond the “safe harbor” date or the day that the electors cast their votes. In 2000, the Florida legislature considered appointing a slate of electors because it feared that a state court would extend the recount beyond the “safe harbor” date. In reaction to the 2000 election, at least one state, North Carolina, amended its election laws to provide explicitly for the legislature to appoint a slate of electors directly if an election controversy were not resolved by six days before the electors cast their votes. Must the President and the Vice President Be from Different States? At least one of the two votes cast by electors must, of course, be cast for a person who is “not an inhabitant of the same state with themselves.” This constitutional provision has led to the practice of political parties (and independent candidates) nominating a candidate for president from one state and a candidate for vice president from another. The Constitution does not require the president and vice president to be inhabitants of different states; it merely requires electors to cast at least one ballot for someone from a state other than their own. Thus, if in 1980 the Republican Party had nominated Gerald Ford to run with his fellow Californian Ronald Reagan (assuming neither changed his official residence to another state), only California electors would have been presented with a problem and, more precisely, only Califor- nia Republican electors. They would have had to vote for Reagan and, say, Jack Kemp or perhaps Kemp and Gerald Ford; they would not have 12 AFTER THE PEOPLE VOTE been permitted to vote for a ticket comprising both Reagan and Ford. In a close election, this provision might mean that either the presidential or, more likely, the vice-presidential candidate might fail to achieve a majority of the Electoral College, and the election might be thrown to the House or Senate. Practically, this issue is not likely to arise, for candidates can easily change their legal inhabitance. Immediately before becoming George W. Bush’s running mate, Richard Cheney owned a house in Texas and was the CEO of a Houston-based company. Before the election, Cheney changed his legal residence to Wyoming, where he owned a house and had been raised and which he had represented in Congress. A group of Texas voters filed suit over the legitimacy of casting Texas electoral votes for Bush and Cheney.7 The court ruled that an individual is an inhabitant of a given state if he “(1) has a physical presence within that state and (2) intends that it be his place of habitation.”8 As such, Wyoming fully qualified as Cheney’s place of residence..

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