Proposed Changes to the Electoral College
In the years since the highly controversial 2000 presidential election, bills have been introduced in every state in the country to change the process for selecting electors. During the period of 2001-2006, most Electoral College reform bills proposed switching to the district system. None of these bills passed. In the years since, attention has largely shifted to the National Popular Vote (NPV). This is an idea that would allow states to bypass the Electoral College without amending the U.S. Constitution. When a state joins the NPV Compact, it promises that it will give all of its electoral votes to the party that wins the national popular vote, rather than the party that wins the state popular vote. For instance, if the Democratic candidate won the popular vote in California, but the Republican candidate won the popular vote nationwide, California would be required to send the Republican slate of electors to the meeting of the electors. The NPV has not yet taken effect; states with a total of at least 270 electoral votes must join before it can function.
The idea of abolishing the Electoral College and instead electing the president by direct popular vote comes about every few years. Abolishing the Electoral College requires an amendment to the US Constitution. There are two ways to do that:
- Congress can propose an amendment by a two-thirds vote of both chambers. The amendment then has to be ratified by the legislatures of three-fourths of the states. All existing amendments to the Constitution were made in this manner.
- The legislatures of two-thirds of the states can petition Congress to convene a Constitutional Convention. At a Constitutional Convention, any part of the Constitution could be amended; action is not restricted to the sections governing the Electoral College or any other part of the Constitution. Again, any proposed amendment would have to be ratified by three-fourths of the states. This method has never been invoked.
There is no federal law or constitutional provision requiring electors to vote for the party that nominated them, and over the years a number of electors have voted against the instructions of the voters. In 2004, a Minnesota elector nominated by the Democratic Party cast a ballot for John Edwards, the vice presidential running mate of John Kerry--thought to be an accident. Electors generally are selected by the political party for their party loyalty, and many are party leaders, and thus not likely to vote other than for their party's candidate.
In 2016, there were seven faithless electors, the most since 1972—three Democratic electors from Washington state cast their votes for Republican Colin Powell, instead of Democrat Hillary Clinton; one Democratic elector from Washington state cast his vote for Faith Spotted Eagle, a woman who is a member of the Yankton Sioux Nation; one Democratic elector from Hawaii cast his vote for Bernie Sanders, instead of Hillary Clinton; one Republican elector from Texas cast his vote for John Kasich, instead of Donald Trump; and one Republican elector from Texas cast his vote for Libertarian Ron Paul. The last time an elector crossed party lines was in 1972, when an elector nominated by the Republican Party cast his ballot for the Libertarian ticket.
Some states have passed laws that require their electors to vote as pledged. These laws may either impose a fine on an elector who fails to vote according to the statewide or district popular vote, or may disqualify an elector who violates his or her pledge and provide a replacement elector. In July 2020, the U.S. Supreme Court ruled that it is constitutional for states to enact this type of law. The states with laws that attempt to bind the votes of presidential electors are below:
States With Laws That Attempt to Bind the Votes of Presidential Electors
|Alabama (Ala. Code §17-14-31)
||Mississippi (Miss. Code Ann. §208.46)
Alaska (Alaska Stat. §15.30.090)
|Montana (Mont. Code Ann. §13-25-307)
|Arizona (Ariz. Rev. Stat. §16-212)
||Nebraska (Neb. Rev. Stat. §32-714)
|California (Cal. Elec. Code §6906)
||Nevada (Nev. Rev. Stat. §298.075)
|Colorado (Colo. Rev. Stat. §1-4-304)
||New Mexico (N.M. Stat. Ann. §1-15-9)
|Connecticut (Conn. Gen. Stat. §9-176)
||North Carolina (N.C. Gen. Stat. §163-212)
|Delaware (Del. Code Ann. tit. 15, §4303(b))
||Oklahoma (Okla. Stat. tit.26 §10-102)
|District of Columbia (D.C. Code §1-1001.08)
||Ohio (Ohio Rev. Code §3505.40)
|Florida (Fla. Stat. §103.021)
||Oregon (Or. Rev. Stat. §248.355)
|Hawaii (Haw. Rev. Stat. §14-28)
||South Carolina (S.C. Code Ann. §7-19-80)
|Indiana (Ind. Code §3-10-4-1.7)
||Tennessee (Tenn. Code Ann. §2-15-104)
|Iowa (Iowa Code §54.8)
|Maine (Me. Stat. tit.21-A, §805)
||Vermont (Vt. Stat. Ann. §2732)
|Maryland (Md. Code Ann. §8-505)
||Virginia (Va. Code Ann. §24.2-203)
|Massachusetts (Mass Gen. Laws ch.53, §8)
||Washington (Wash. Rev. Code §29A.56.090)
|Michigan (Mich. Comp. Laws §168.47)
||Wisconsin (Wis. Stat. §7.75)
|Minnesota (Minn. Stat. §208.46)
||Wyoming (Wyo. Stat. Ann. §22-19-108)
Most of the laws cited above require electors to vote for the candidate of the party that nominated the elector, or require the elector to sign a pledge to do so. Some go further: Oklahoma imposes a civil penalty of $1,000; in North Carolina, the fine is $500, the faithless elector is deemed to have resigned, and a replacement is appointed. In South Carolina, an elector who violates his or her pledge is subject to criminal penalties, and in New Mexico a violation is a fourth degree felony. In Michigan, a candidate who fails to vote as required is considered to have resigned, and a replacement is appointed.