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The Electoral College: Republic, Democracy, Tweakers in Denial
Who are the Electors?
What are the qualifications to be an Elector?
The U.S. Constitution contains very few provisions relating to the qualifications of Electors. Article II, section 1, clause 2 provides that no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. As a historical matter, the 14th Amendment provides that State officials who have engaged in insurrection or rebellion against the United States or given aid and comfort to its enemies are disqualified from serving as Electors. This prohibition relates to the post-Civil War era.
Each state’s Certificates of Ascertainment confirms the names of its appointed electors. A state’s certification of its electors is generally sufficient to establish the qualifications of electors.
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. Each candidate will have their own unique slate of potential Electors as a result of this part of the selection process.
Electors are often chosen to recognize service and dedication to their political party. They may be State-elected officials, party leaders, or persons who have a personal or political affiliation with the Presidential candidate.
On Election Day, the voters in each State choose the Electors by casting votes for the presidential candidate of their choice. 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. The winning candidate in each State—except in Nebraska and Maine, which have proportional distribution of the Electors—is awarded all of the State’s Electors. In Nebraska and Maine, the state winner receives two Electors and the winner of each congressional district receives one Elector. This system permits the Electors from Nebraska and Maine to be awarded to more than one candidate.
Are there restrictions on who the Electors can vote for?
There is no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their States. Some States, however, require Electors to cast their votes according to the popular vote. These pledges fall into two categories—Electors bound by State law and those bound by pledges to political parties.
The U.S. 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. 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. 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.
Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of Electors have voted as pledged.
List of State Laws and Requirements Regarding the Electors
as of November 2000
Source: Congressional Research Service
The Office of the Federal Register presents this material for informational purposes only, in response to numerous public inquiries. The list has no legal significance. It is based on information compiled by the Congressional Research Service. For more comprehensive information, refer to the U.S. Constitution and applicable Federal laws.
Legal Requirements or Pledges
Electors in these States are bound by State Law or by pledges to cast their vote for a specific candidate:
ALABAMA – Party Pledge / State Law – § 17-19-2
ALASKA – Party Pledge / State Law – § 15.30.040; 15.30.070
CALIFORNIA – State Law – § 6906
COLORADO – State Law – § 1-4-304
CONNECTICUT – State Law – § 9-175
DISTRICT OF COLUMBIA – DC Pledge / DC Law – § 1-1312(g)
FLORIDA – Party Pledge / State Law – § 103.021(1)
HAWAII – State Law – §§ 14-26 to 14-28
MAINE – State Law – § 805
MARYLAND – State Law – § 20-4
MASSACHUSETTS – Party Pledge / State Law – Ch. 53, § 8, Supp.
MICHIGAN – State Law – §168.47 (Violation cancels vote and Elector is replaced.)
MISSISSIPPI – Party Pledge / State Law – §23-15-785(3)
MONTANA – State Law – § 13-25-104
NEBRASKA – State Law – § 32-714
NEVADA – State Law – § 298.050
NEW MEXICO – State Law – § 1-15-5 to 1-15-9 (Violation is a fourth degree felony.)
NORTH CAROLINA – State Law – § 163-212 (Violation cancels vote; elector is replaced and is subject to $500 fine.)
OHIO – State Law – § 3505.40
OKLAHOMA – State Pledge / State Law – 26, §§ 10-102; 10-109 (Violation of oath is a misdemeanor, carrying a fine of up to $1000.)
OREGON – State Pledge / State Law – § 248.355
SOUTH CAROLINA – State Pledge / State Law – § 7-19-80 (Replacement and criminal sanctions for violation.)
VERMONT – State Law – title 17, § 2732
* VIRGINIA – State Law – § 24.1-162 (Virginia statute may be advisory – “Shall be expected” to vote for nominees.)
WASHINGTON – Party Pledge / State Law – §§ 29.71.020, 29.71.040, Supp. ($1000 fine.)
WISCONSIN – State Law – § 7.75
WYOMING – State Law – §§ 22-19-106; 22-19-108
No Legal Requirement
Electors in these States are not bound by State Law to cast their vote for a specific candidate:
In each state, whichever party garners a majority of popular votes, regardless of how narrow the margin, wins all the electoral votes. By forcing residents in each state ultimately to vote as a block, the system is supposed to ensure that small states' interests are not drowned out by those of larger states.
In all, there are 538 electoral votes and the number given to each state reflects the sum of the representatives and senators it sends to Congress. It takes 270 or more Electoral College votes to win the election.The biggest states California (55), New York (31), Texas (34), Pennsylvania (21) have the most impact on the result of the presidential election.
Usually, the result is nearly the same as it would have been if the election were direct. Yet the system has produced presidents who received a minority of the popular vote but a majority of the electoral votes. NOTE: In the elections of Harry S Truman, Woodrow Wilson and Abraham Lincoln, there were more than two candidates and each of the elected Presidents won more popular votes than any of their respective opponents.
President Bill Clinton was also elected in 1992 with only 43 percent of the popular vote, but 370 electoral votes. In his case there was also more than two candidates.
Several times in recent electoral college history, a relatively small shift in voter preference in key states could have reversed election outcomes.
In prior elections, four U.S candidate for President won the popular vote but lost the presidency: Andrew Jackson won the popular vote but lost the election to John Quincy Adams in 1824; Samuel J. Tilden won the popular vote but lost the election to Rutherford B. Hayes in 1876; Grover Cleveland won the popular vote but lost the election to Benjamin Harrison in 1888, and Al Gore won the popular vote but lost the election to George W. Bush in 2000.
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