O/T - (CNN) "ELECTORS: FREQUENTLY ASKED QUESTIONS"
Reference question D in particular...
A. WHO ARE THE ELECTORS?
Electors are typically party loyalists who are selected because they are seen as certain to support their party's nominee when it comes time to actually cast electoral votes.
Electors may be state elected officials, party leaders, or people with a personal or political affiliation with the presidential candidate, but according to the Constitution, members of Congress and anyone "holding an office of trust or profit under the United States" (i.e. Cabinet secretaries or other federal officials) are barred from serving as electors.
On September 1, 2000, each registered political party in Florida submitted the names and addresses of the state's 25 electors to the Division of Elections at the Secretary of State's office. The candidates for elector that were nominated by each party were required to take an oath prior to September 1 to vote for the candidate on whose behalf they were nominated. Not all states have this oath (See Section C).
B. WHO SELECTS THE ELECTORS?
The process for selecting electors varies throughout the United States. Generally, the political parties nominate electors at their state party conventions or by a vote of the party's central committee in each state.
In Florida, the Democratic slate of electors for this election was chosen entirely by Bob Poe, the state party chairman. The Republican state party executive committee chose the Republican slate of electors.
On November 7, the voters in each state did not technically vote for Bush or Gore, but instead voted for a slate of electors to represent their state in the Electoral College on Dec. 18. The electors' names may or may not appear on the ballot below the name of the candidates running for president, depending on the procedure in each state.
In Florida, the names of the electors were not listed on the presidential ballot.
C. ARE ELECTORS REQUIRED TO VOTE FOR THE CANDIDATE WHO WON THEIR STATE'S POPULAR VOTE?
1. No Constitutional provision or federal law requires an elector to vote for the candidate who won the popular vote in his or her state.
2. In certain states, electors are "bound" (they must cast their votes according to the results of the statewide popular vote) -- either by state law or by pledges to political parties. Bear in mind, however, that state laws binding electors have never been enforced and many legal scholars considered those laws unconstitutional or unenforceable. Some legal scholars also conclude that those state laws cannot invalidate an elector's vote once it is cast; that power is left to Congress (see section J below).
According to the Congressional Research Service, on the National Archives and Records Administration Web site, 26 states plus the District of Columbia bind their electors in one way or another. Florida is one of these states. The following states bind electors through state laws: CA, CO, CT, DC, HI, ME, MD, MI, MT, NE, NV, NM, NC, OH, OK, OR, SC, VT, VA, WI, WY
In the following states, electors pledge to political parties (these pledges are required under state law): AL, AK, FL, MA, MS, WA
3. What are the penalties for bound electors not voting according to popular vote? * Some State laws provide that so-called "faithless electors" may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector (NARA Web site).
4. It is unclear, however, whether any state laws or party pledges that bind electors are enforceable.
James C. Kirby, Jr., an expert on Electoral College law writes: "The preponderance of legal opinion seems to be that statutes binding electors, or pledges that they may give, are unenforceable. 'If an elector chooses to incur party and community wrath by violating his trust and voting for someone other than his party's candidate, it is doubtful if there is any practical remedy." Once the elector is appointed, Kirby points out, "he is to vote. Legal proceedings which extended beyond the date when the electors must meet and vote would be of no avail. If mandamus were issued and he disobeyed the order, no one could change his vote or cast it differently. If he were enjoined from voting for anyone else, he could still abstain and deprive the candidate of his electoral vote.'" (Source: The Electoral College Primer 2000, pgs. 114-116)
According to the NARA Web site: "The Supreme Court has held that the Constitution does not require that electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties' nominees. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No elector has ever been prosecuted for failing to vote as pledged." Article II, Section 1 of the Constitution says that presidential electors must "vote by ballot." According to the Electoral College Primer 2000, this is "a procedure which would seem to imply that they are free agents." (Source: The Electoral College Primer 2000, pgs. 114-116)
See faithless electors below for statistics and examples
D. WHAT HAPPENS IF FLORIDA DOESN'T VOTE IN THE ELECTORAL COLLEGE?
There are two competing theories on what would happen:
Theory #1: Whichever candidate wins a majority of the remaining number of electoral votes would win the presidency
The Constitution says that "the person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed." Some have interpreted the phrase "whole number of electors appointed" to mean the total number of electors certified to vote when the Electoral College meets on December 18. Thus, if Florida is unable to officially appoint its 25 electors by that time, a candidate need only win a majority of the remaining electors, or 257 votes out of a possible 513. Under this scenario, Vice President Al Gore, who currently holds 255 electoral votes, need only win New Mexico (5 electoral votes) or Oregon (7 votes) in order to win (AP has called both states for Gore). Senator Patrick Leahy (D-Vermont) reportedly has also ordered research on this issue and believes that the removal of Florida's votes will mean that the winner of the election will be the candidate who has the majority of the remaining 513 electoral votes (Source: Washington Post 11/19).
Theory #2: Without Florida, neither candidate could reach the required 270, and the U.S. House of Representatives would elect the president
Some argue that even if Florida does not certify its electors in time for them to vote in the Electoral College, a candidate would still need a majority of all possible electoral votes in order to win (270 out of 538). Without Florida, neither candidate can reach the 270 electoral votes needed to win. Under the Constitution, if neither candidate wins a majority in the Electoral College, then "the House... shall choose the President." (Article II, Section 1, Clause 3). The Senate would elect the vice president. Each state would cast one vote (The District of Columbia does not vote), and it would be up to each state's congressional delegation to determine how the state would vote. Thus the candidate who won 26 out of 50 states would win the presidency. Currently Republicans have a majority in 28 congressional delegations, presumably giving Bush the advantage if the presidential election was thrown to the House. If the House vote were tied, then the vice president-elect (selected by the Senate) would become acting president. If the Senate were unable to select a vice president, the speaker of the House would become acting president until a new president is finally chosen. If the speaker of the House, for whatever reason, cannot assume the presidency, the next in the line of succession would be the president pro tempore of the Senate. The line of succession then goes on to the various cabinet officials. If anyone became acting president, he or she would serve only until the House could pick a president, which the House would be free to do at any time.
E. CAN FLORIDA CAST ANY ELECTORAL VOTES IF THE STATE'S CURRENT POPULAR VOTE DISPUTE REMAINS UNRESOLVED?
Yes, it can. The state legislature could step in and decide on its own how to allocate Florida's 25 electors. Under the Constitution, each state has the power to decide how its electors are chosen. Furthermore, Section 2, Title 3 of the U.S. Code states the following:
"Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."
According to Michael Glennon of the University of California at Davis Law School, the Florida Legislature could choose from among several options, including enacting a law decreeing that the electors should go to whoever wins the current recount, appointing a special commission to investigate voting irregularities and issue a ruling on who won the state, holding a new election, or even designating a slate of electors outright.
F. CAN FLORIDA'S ELECTORAL VOTES BE CHALLENGED AFTER THE ELECTORAL COLLEGE MEETS?
Yes. After the Electoral College casts its vote on December 18, that is not the end of the process. The votes of the electors are officially counted in a joint session of the U.S. House and Senate on Jan. 6. There are precise laws governing how those votes are opened and tallied, including where the joint session will be held (in the chamber of the House), who will preside (Al Gore, who will still serve as president of the Senate), and even where Gore will sit. Even if a candidate wins 270 electoral votes on December 18, he will not officially be certified as the next president until this joint session of Congress on Jan. 6.
In that joint session, even if Florida certifies its electors and votes in the electoral college, all it takes is one senator and one representative to raise an objection. When Florida's votes are opened and read by Gore, he would then call for any objections to Florida's vote. Objections would have to be submitted in writing and signed by at least one senator and one representative. At this point, all senators would withdraw to their chamber and all representatives would remain in their chamber for the purpose of considering the objection(s). A majority vote in both the House and the Senate would be necessary to invalidate Florida's electoral votes in order to discard the vote and not include it in the overall count.
G. WHO CERTIFIES THE ELECTORS IN FLORIDA?
Gov. Jeb Bush, working in conjunction with Secretary of State Katherine Harris.
As soon as the final election results become certified by the secretary of state's office, a "Certificate of Ascertainment" can be prepared. In Florida, the secretary of state's office and the governor's office usually draw up the Certificate through a joint effort.
Gov. Bush, working with Secretary of State Harris, is responsible for preparing seven original Certificates of Ascertainment of the electors appointed. The Certificate of Ascertainment must list the names of the electors appointed and the number of votes received by each elector. It must also list the names of all other candidates for elector and the number of votes received by each.
The Certificate must be signed by the governor and the secretary of state and carry the Florida State seal. The format of the Certificate is not dictated by Federal law, but conforms to the law or custom of the state in question. One original Certificate, along with two authenticated copies (or two additional originals), must then be sent by registered mail and received by the Archivist of the United States at the National Archives and Records Administration (NARA) by December 18. (More specifically, the documents go to the Office of Federal Register (OFR), which is part of the National Archives.) The Archivist, in turn, forwards one copy to each chamber of Congress and retains the original. The other six original Certificates must be delivered to Florida's electors on or before the day that they meet (December 18).
Sources: --Ed Kast, Assistant Director of the Florida Elections Division 850-413-9711 (though he prefers for us to go through the Sec. of State's press office) --Michael White, Office of the Federal Registry 202-275-4292, ext. 275
H. WHEN IS THE DEADLINE TO CERTIFY ELECTORS?
Under federal law (U.S. Code, Title 3, Chapter 1, Section 5), any dispute regarding the appointment of electors must be settled by the states six days prior to the date electors meet (December 12 -- the electors meet on Dec. 18).
However, an elector is considered to be officially "certified" once the National Archives has received the appropriate Certificate of Ascertainment from a given state, according to Michael White of the Office of the Federal Register. The National Archives does not need to receive this certificate until Dec. 18 -- the date of the actual Electoral College vote. While the U.S. Code indicates that disputes over appointing electors must be resolved by Dec. 12, White points out that there is no actual penalty under federal law for missing that deadline. The Archives would not refuse to accept a Certificate of Ascertainment from the state of Florida if, for example, the vote dispute was settled sometime between Dec. 12 and Dec. 18. It would be up to Congress to decide to accept the electoral vote of a state that did not meet the Dec. 12 statutory deadline for settling disputes.
I. IF NEITHER CANDIDATE WINS A MAJORITY OF ELECTORAL VOTES
If neither presidential candidate wins a majority of electoral votes, the U.S. House of Representatives will elect the president. Each state gets only one vote.
A state delegation in the House with a majority of Republicans will likely cast its vote for George W. Bush; a state delegation with a majority of Democrats will likely cast its vote for Al Gore.
The District of Columbia, with one non-voting delegate, does not get to cast a vote.
J. WHAT ARE THE KEY ELECTORAL COLLEGE DATES TO FOLLOW?
November 7, 2000 -- General election: The voters in each state choose electors to serve in the Electoral College. As soon as election results are final, the states prepare seven "Certificates of Ascertainment" of the electors chosen, and send one original along with two certified copies to the archivist of the United States.
December 12, 2000 - Appointment of electors: States must resolve disputes over appointment of electors by this date, according to U.S. Code. (However, see Section "H" above.)
December 18, 2000 -- Meeting of electors: The electors in each state meet to select the president and vice president of the United States. The electors record their votes on six "Certificates of Vote," which are paired with the six remaining original "Certificates of Ascertainment." The electors sign, seal and certify the packages of electoral votes and immediately send them to the president of the Senate, the archivist of the United States and other designated federal and state officials.
December 27, 2000 -- Deadline for receipt of electoral votes: The president of the Senate, the archivist of the United States, and other designated federal and state officials must have the electoral votes in hand.
January 5, 2001 -- Counting electoral votes in Congress: The Congress meets in joint session to count the electoral votes (Congress is currently scheduled by law to meet to count the electoral votes on January 6. This date, however, falls on a Saturday. The December lame-duck session of Congress is expected to change the date to Friday, Jan. 5.)
K. RECENT CASES OF "FAITHLESS ELECTORS":
The National Archives and Records Administration Web site notes: "Throughout our history as a nation, more than 99 percent of electors have voted as pledged."
So-called "faithless electors" are those electors who do not vote for their party's presidential candidate when the Electoral College meets on Dec. 18. Examples are below:
1948: Preston Parks, a Democratic elector from Tennessee, was nominated on two elector slates -- the regular Democratic slate (pledged to Harry Truman) and the States' Rights slate (pledged to Sen. Strom Thurmond, D-South Carolina). The regular Democratic slate was elected when Truman carried Tennessee, but Parks voted for Thurmond.
1956: W.F. Turner, a Democratic elector from Alabama, voted for local Judge Walter E. Jones instead of Democratic presidential nominee Adlai Stevenson.
1960: Henry D. Irwin, a Republican elector from Oklahoma, voted for Sen. Harry Byrd (D-Virginia) instead of Republican presidential nominee Richard Nixon.
1968: Lloyd W. Bailey, a Republican elector from North Carolina, voted for George Wallace, the American Independent Party candidate, instead of Republican presidential nominee Richard Nixon.
1972: Roger L. MacBride, a Republican elector from Virginia, voted for John Hospers, the Libertarian Party candidate, instead of Republican presidential nominee Richard Nixon.
1976: Mike Padden, a Republican elector from Washington State, voted for Ronald Reagan instead of Republican presidential nominee Gerald Ford.
1988: Margaret Leach, a Democratic elector from West Virginia, voted for Lloyd Bentsen instead of Democratic presidential nominee Mike Dukakis. (Leach voted for Bentsen for president and Dukakis for vice president.)
"Faithless electors" have occasionally cast votes at least as far back as 1820.
L. CAN CONGRESS INVALIDATE THE VOTES OF "FAITHLESS ELECTORS" DURING ITS JAN. 6 JOINT SESSION WHERE ELECTORAL VOTES ARE COUNTED?
Yes, although the last time an objection was raised to a "faithless elector," Congress allowed that vote to stand. This occurred in 1972, when objection was raised to the vote noted above for the Libertarian party candidate, but the vote was officially recorded in the final tally because a majority of both chambers of Congress did not vote to invalidate it.
M. MORE ON FAITHLESS ELECTORS:
Some interesting comments and tidbits about so-called "faithless electors":
--The first case of a "faithless elector" was in 1796, when Samuel Miles, who was picked as a Federalist elector, cast his vote for Republican candidate Thomas Jefferson. A voter famously remarked that Miles was chosen "to act, not to think." (The Electoral College Primer 2000, pg. 111)
--"In 1820, former senator William Plumer of New Hampshire cast his electoral vote for John Quincy Adams rather than James Monroe, to whom he was pledged. Accounts vary about Plumer's motivation; he is reported to have said he felt that only George Washington 'deserved a unanimous election' but biographers also report that he wanted to draw attention to his friend Adams as a potential president and to 'protest against the wasteful extravagance of the Monroe Administration'" (The Electoral College Primer 2000, pg. 111)
--"In 1956, W.F. Turner of Alabama, a Democratic elector, voted for local Judge Walter E. Jones, for president instead of supporting the regular Democratic nominee, Adlai E. Stevenson, to whom he was pledged. Turner subsequently commented: 'I have fulfilled my obligations to the people of Alabama. I'm talking about the white people'" (The Electoral College Primer 2000, pg. 112)
Should electors be independent? The Electoral College Primer 2000 cites the following interesting quotes:
--"In an 1826 Senate committee report, Thomas Hart Benton of Missouri said that the founding fathers had intended electors to be men of 'superior discernment, virtue and information,' who would select the president 'according to their own will' and without reference to the immediate wishes of the people. 'That this invention has failed of its objective in every election,' Benton said, 'is a fact of such universal notoriety, that no one can dispute it. That it ought to have failed,' he concluded, 'is equally uncontestable; for such independence in the electors was wholly incompatible with the safety of the people. [It] was, in fact, a chimerical and impractical idea in any community'" (The Electoral College Primer 2000, pgs. 109-110).
--Senator Benton went on to warn that an elector "may give or sell his vote to the adverse candidate, in violation of all the pledges that have been taken of him. The crime is easily committed, for he votes by ballot; detection is difficult, because he does not sign it; prevention is impossible, for he cannot be coerced; the injury irreparable, for the vote cannot be vacated; legal punishment is unknown and would be inadequate" (The Electoral College Primer 2000, pg. 111).
--In 1898, former President Benjamin Harrison warned that "an elector who failed to vote for the nominee of his party would be the object of execration, and in times of high excitement might be the subject of a lynching" (The Electoral College Primer 2000, pg. 111).
--"Senator Henry Cabot Lodge of Massachusetts said in 1949 that electors 'are mere rubber stamps--and inaccurate rubber stamps at that. The people know the candidates for president and vice president; rarely do they know the identity of the electors for whom they actually vote. Such 'go-betweens' are like the appendix in the human body. While it does no good and ordinarily causes no trouble, it continually exposes the body to the danger of political peritonitis'" (The Electoral College Primer 2000, pg. 110).
--"Supreme Court Justice Robert H. Jackson wrote in 1952: 'Electors, although often personally eminent, independent and respectable, officially become voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire: They voted at their party's call / And never thought of thinking for themselves at all'" (The Electoral College Primer 2000, pg. 110).
(SOURCES: The Electoral College Primer 2000, pgs. 112-133; Presidential Elections, 1789-1996, pg. 15)
cnn.com |
