The Faithless Elector and 2016: Constitutional Uncertainty After the Election of Donald Trump

Abstract

Presidential electors are generally expected to vote for the candidate who won their state\u27s election, and those who do not are referred to as faithless electors. A majority of states have laws of varying types that bind their electors to vote for the winning presidential candidate. The 2016 election, for the first time in modern history, produced a serious movement urging electors to cast faithless votes against Donald Trump. Although this movement was not successful, 2016 saw the most faithless electors in recent history by a large margin. Three separate, ultimately unsuccessful, lawsuits were filed by would-be faithless electors in an attempt to invalidate their states\u27 binding laws.This article reviews the history of and academic literature on faithless electors. It then surveys the elector binding laws that exist today and reviews the operation of these laws after the 2016 election. I find that deterrence-based statutes in different states (notably Colorado and Hawaii) produced inconsistent results, in part due to the discretion that state election officials had over these laws’ enforcement. This article concludes that such discretion is problematic, as it could be exercised according to the political preferences of partisan state officials