‘Faithless Electors’: A Risk to Outcome of US Presidential Race?

Could the votes in the Electoral College be an obstacle to the White House for whoever wins the presidential race?

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As the US presidential election races to a remarkably close photo finish, Democratic nominee Joe Biden holds a lead over President US Donald Trump in the electoral college vote.

While the race seems focussed right now on who is winning more popular votes, the crucial factor is actually the Electoral College. A presidential candidate aims not to win the people’s vote, or the ‘popular vote’, but a majority of the Electoral College.

What is this? During the American elections, when people vote, they are actually voting for a group known as ‘electors’. In the US, the president and vice president are not elected directly by citizens, but by electors, through a process called the ‘Electoral College’.

So is the Electoral College and the votes there still another risk or obstacle to the White House for whoever wins the presidential race? Could ‘faithless electors’ be a problem? Here’s an analysis.

HOW DOES THE ELECTORAL COLLEGE WORK?

Each state is assigned a number of electors based on its Congressional delegation: the sum of its senators (every state has two) and representatives in the House. Currently, there are 538 electors – the sum of 435 members of the US House of Representatives, plus the 100 senators (two each for 50 states), as well as the three votes assigned to Washington DC.

Each presidential vote goes to a statewide tally. With the exception of Maine and Nebraska, which use a different system to award their electoral college votes, 48 states and Washington DC, follow a winner takes all formula. This means that the winner by even one vote gets all the electoral votes for that state.

A candidate needs at least 270 votes, that is, 50 percent plus one, to win the presidential election.

Electors are usually party loyalists pledged to vote for the party’s candidate once their state’s voters have made their choice clear. Essentially, when an American votes for president, they vote for these electors who will later elect the president.

HOW ARE THESE ELECTORS EXPECTED TO VOTE?

While the Constitution doesn’t require electors to follow their state's popular vote, many states' laws do. According to policy institute Brennan Centre for Justice, electors vote as expected about 99 percent of the time.

In all states - but Maine and Nebraska, which have their own system of assigning electoral votes- electors are pledged to vote for the highest vote getter in their state, according to a report by Fortune. However, in many states, nothing stops them from breaking that pledge to vote for another candidate.

According to the Brennan Centre, thirty-two states and the District of Columbia have laws that “bind” electors to vote according to their pledge. However, 19 of these, as well as D.C do not specify legal consequences for electors who defy the will of the voters.

In 11 states, a non-compliant vote is nullified and a new elector is chosen, while in four others, including two that also replace faithless electors, violating the pledge is punishable by prosecution or a fine. Reuters reports that these penalties include cancelling the vote, a $1000 fine, and in New Mexico, even up to 18 months of prison.

FAITHLESS ELECTORS – HOW COMMON?

“Faithless electors” are those who cast their vote for someone other than the presidential candidate who won the popular vote in the state.

Reuters reports highlight how the risk is at an all-time high in a ‘razor-thin electoral vote’, where even one faithless elector could determine the outcome of the election.

FairVote reports show that out of 23,507 elector votes cast in 58 presidential elections, only 90 have gone rogue. This shows a mere 0.003% chance of wrongful intervention.

In 2016, there were seven faithless electors, defecting from Clinton and Trump to vote for other candidates such as Bernie Sanders and Faith Spotted Eagle. This, however, while affecting the final tally, had no impact on the outcome, with Trump winning 304 votes while Clinton won 227.

Further, only once has an elector cast their vote for the opponent of their pledged candidate in 1796, a study by think tank Brookings shows.

THE RISK FROM FAITHLESS ELECTORS IN 2020

While the 2016 election saw no consequences, the 2020 neck-to-neck election may be decided by one single rogue vote. If Biden wins Arizona and Nevada, he would reach the magic number of 270, taking the White House. If Trump wins North Carolina, Pennsylvania, and Georgia, he would have 268 votes. In this scenario, it would take simply one faithless elector to tie the two candidates at 269, according to Fortune.

If there is such a tie that takes place, the Constitution mandates that decision must rest with the Congress. While the House of Representatives gets to choose the president, the Senate gets to choose the vice president.

Though this has never happened before, Dave Daley from FairVote says that “Constitutional chaos would be something wise to avoid in such polarized times”.

While no one can ascertain the faithlessness of the electors, the probability of this happening in 2020 is low. Moreover, the Brookings study showing that faithless electors have never changed an election.

But if Biden must win without worrying about faithless electors, he needs to have a big enough margin in the Electoral College and clinch North Carolina, Georgia, or Pennsylvania — in addition to Arizona, and Nevada.

(With inputs from Reuters, Brookings, Brennan Centre for Justice and Fortune.)