[Congressional Record Volume 163, Number 5 (Monday, January 9, 2017)]
[House]
[Pages H197-H199]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       FAITHLESS ELECTOR PROBLEM

  The SPEAKER pro tempore. The Chair recognizes the gentleman from 
Alabama (Mr. Byrne) for 5 minutes.
  Mr. BYRNE. Mr. Speaker, last Friday the House and the Senate met to 
fulfill our solemn constitutional responsibility to count the votes of 
electors for President and Vice President. This year the joint session 
was confronted with a record number of so-called faithless electors--
electors who were supposed to vote for the Presidential candidates 
named on their States' ballot, but, instead, voted for someone else.
  Different States handle their faithless electors in different ways. 
In my view, the joint session rightly fulfilled its constitutional 
responsibility by simply taking the certified results of each State 
without intervention. This was in line with precedent set in 1969 and 
with the text of the Constitution.
  Because I believe this decision to be correct, I did not file an 
objection during the counting process. However, I wish for the Record 
to contain my views on this matter and to express my concern that an 
avoidable constitutional crisis on this subject is a very real 
possibility in the future.
  The faithless elector problem has often been seen as academic, but in 
2000, Vice President Gore was three faithless electors away from the 
Presidency. As a point of reference, there were 10 faithless electors 
in this election. Thus, this is not a matter that should be taken 
lightly.
  Article II, Section 1, Clause 2 of the Constitution gives the States 
the exclusive power to appoint electors in a manner decided by their 
State legislatures. Clause 4 provides the sole grant of authority to 
Congress in the process to determine the time for choosing electors and 
the day they cast their vote.
  The process to count electors is outlined in Clause 3 and identical 
language which superseded it in the 12th Amendment. It provides that, 
``The President of the Senate shall, in the presence of the Senate and 
the House of Representatives, open all the certificates and the votes 
shall then be counted. . . .'' Under the 12th Amendment, the persons 
receiving a majority of the vote ``shall be'' the President and Vice 
President.
  The extent of what Congress' powers are in the counting process has 
been the subject of over 200 years of debate. The Congressional Record 
from 1800 includes a lengthy speech by Senator Charles Pinckney, a 
Framer of the Constitution, who stated that as the Framers wished the 
President to be independent, ``It never was intended . . . to have 
given to Congress . . . the right to object to any electoral vote.''
  The first successful effort to expand Congress' power in counting did 
not come until 1865, when Congress adopted a joint House-Senate rule on 
the subject. Under the rule, no electoral vote that incurred an 
objection could be counted unless both Houses agreed.
  The joint rule was tempered by the Electoral Count Act of 1887, which 
still governs the counting process to this day. The law allows an 
objection signed by a House and a Senate Member. However, under the 
Electoral Count Act, unless there is a case of double returns, no 
electoral vote regularly given and lawfully certified shall be 
rejected.
  In 1969, Dr. Lloyd Bailey, a Republican elector from North Carolina, 
was faithless, and the Governor of North Carolina certified the State's 
electoral certificate with knowledge of his vote.
  The House and the Senate thoroughly debated whether Dr. Bailey's vote 
should be counted, but ultimately voted to reject the challenge. 
Opponents of the challenge, in my view, properly argued that Congress 
lacked the power to exclude Dr. Bailey's vote under the Electoral Count 
Act and, more importantly, Congress had no power to exclude his vote 
under the Constitution. To do so would be a violation of the rights of 
the sovereign States.
  Some have argued that the Bailey precedent is not applicable when an 
elector violates his or her State's law in casting a faithless vote. I 
find this argument constitutionally suspect. Unless no candidate 
reaches a majority, Congress' role in the counting process appears to 
be ministerial: to count votes and announce a result.
  For that reason, the issue of faithless electors is rightly resolved 
at the State level, before the results reach Congress. At the present 
time, however, a

[[Page H198]]

hodgepodge of State laws exist to deal with faithless electors, some of 
which are ill-equipped to handle the problem.
  Fortunately, the Uniform Law Commission has proposed the Faithful 
Presidential Electors Act, which has already been enacted in four 
States. The Faithful Presidential Electors Act provides a State-
administered pledge of faithfulness, with any attempt by an elector to 
submit a vote in violation of that pledge constituting a resignation 
from the office of elector. In such case, the act provides a mechanism 
for filling an electoral vacancy.
  At the conclusion of my remarks, I will include in the Record a copy 
of the Faithful Presidential Electors Act.
  In short, Mr. Speaker, based upon my view of the Constitution, 
Congress properly handled the issue of faithless electors in this 
election. This election should, however, serve as a wake-up call to 
States that further action on their part may be necessary.

               Uniform Faithful Presidential Electors Act

 (Drafted by the National Conference of Commissioners on Uniform State 
Laws and by it Approved and Recommended for Enactment in All the States 
at its Annual Conference Meeting in Its One-Hundred-and-Nineteenth Year 
    in Chicago, Illinois July 9-16, 2010 Without Prefatory Note or 
                               Comments)

  [Copyright 2010 by National Conference of Commissioners on Uniform 
                    State Laws, September 28, 2010]


               UNIFORM FAITHFUL PRESIDENTIAL ELECTORS ACT

       SECTION 1. SHORT TITLE. This [act] may be cited as the 
     Uniform Faithful Presidential Electors Act.
       SECTION 2. DEFINITIONS. In this [act]:
       (1) ``Cast'' means accepted by the [Secretary of State] in 
     accordance with Section 7(b).
       (2) ``Elector'' means an individual selected as a 
     presidential elector under [applicable state statute] and 
     this [act].
       (3) ``President'' means President of the United States.
       (4) [``Unaffiliated presidential candidate'' means a 
     candidate for President who qualifies for the general 
     election ballot in this state by means other than nomination 
     by a political party.]
       [(5)] ``Vice President'' means Vice President of the United 
     States.
       SECTION 3. DESIGNATION OF STATE'S ELECTORS. For each 
     elector position in this state, a political party contesting 
     the position[, or an unaffiliated presidential candidate,] 
     shall submit to the [Secretary of State] the names of two 
     qualified individuals. One of the individuals must be 
     designated ``elector nominee'' and the other ``alternate 
     elector nominee''. Except as otherwise provided in Sections 5 
     through 8, this state's electors are the winning elector 
     nominees under the laws of this state.
       Legislative Note: For a state wishing to accommodate 
     unpledged electors, the following three sentences could be 
     substituted for the first two sentences of Section 3: ``Any 
     political party [or unaffiliated presidential candidate] 
     advancing candidates for elector positions in this state 
     shall submit to the [Secretary of State] the names of two 
     qualified individuals for each elector position to be 
     contested. One of the individuals must be designated 
     ``elector nominee'' and the other ``alternate elector 
     nominee''. Any unpledged candidate for the position of 
     elector who is not nominated by a political party or 
     unaffiliated presidential candidate shall submit to the 
     [Secretary of State], in addition to the individual's own 
     name as ``elector nominee'', the name of another qualified 
     individual designated as ``alternate elector nominee''.''
       SECTION 4. PLEDGE. Each elector nominee and alternate 
     elector nominee of a political party shall execute the 
     following pledge: ``If selected for the position of elector, 
     I agree to serve and to mark my ballots for President and 
     Vice President for the nominees for those offices of the 
     party that nominated me.'' [Each elector nominee and 
     alternate elector nominee of an unaffiliated presidential 
     candidate shall execute the following pledge: ``If selected 
     for the position of elector as a nominee of an unaffiliated 
     presidential candidate, I agree to serve and to mark my 
     ballots for that candidate and for that candidate's vice-
     presidential running mate.''] The executed pledges must 
     accompany the submission of the corresponding names to the 
     [Secretary of State].
       Legislative Note: This act does not deal with the 
     possibility of death of a presidential or vice-presidential 
     candidate before the electoral college meetings, or with any 
     other disabling condition or the discovery of disqualifying 
     information. A state may choose to deal separately with one 
     or another of these possibilities.
       SECTION 5. CERTIFICATION OF ELECTORS. In submitting this 
     state's certificate of ascertainment as required by 3 U.S.C. 
     Section 6, the [Governor] shall certify this state's electors 
     and state in the certificate that:
       (1) the electors will serve as electors unless a vacancy 
     occurs in the office of elector before the end of the meeting 
     at which elector votes are cast, in which case a substitute 
     elector will fill the vacancy; and
       (2) if a substitute elector is appointed to fill a vacancy, 
     the [Governor] will submit an amended certificate of 
     ascertainment stating the names on the final list of this 
     state's electors.
       SECTION 6. PRESIDING OFFICER; ELECTOR VACANCY.
       (a) The [Secretary of State] shall preside at the meeting 
     of electors described in Section 7.
       (b) The position of an elector not present to vote is 
     vacant. The [Secretary of State] shall appoint an individual 
     as a substitute elector to fill a vacancy as follows:
       (1) if the alternate elector is present to vote, by 
     appointing the alternate elector for the vacant position;
       (2) if the alternate elector for the vacant position is not 
     present to vote, by appointing an elector chosen by lot from 
     among the alternate electors present to vote who were 
     nominated by the same political party [or unaffiliated 
     presidential candidate];
       (3) if the number of alternate electors present to vote is 
     insufficient to fill any vacant position pursuant to 
     paragraphs (1) and (2), by appointing any immediately 
     available individual who is qualified to serve as an elector 
     and chosen through nomination by and plurality vote of the 
     remaining electors, including nomination and vote by a single 
     elector if only one remains;
       (4) if there is a tie between at least two nominees for 
     substitute elector in a vote conducted under paragraph (3), 
     by appointing an elector chosen by lot from among those 
     nominees; or
       (5) if all elector positions are vacant and cannot be 
     filled pursuant to paragraphs (1) through (4), by appointing 
     a single presidential elector, with remaining vacant 
     positions to be filled under paragraph (3) and, if necessary, 
     paragraph (4).
       (c) To qualify as a substitute elector under subsection 
     (b), an individual who has not executed the pledge required 
     under Section 4 shall execute the following pledge: ``I agree 
     to serve and to mark my ballots for President and Vice 
     President consistent with the pledge of the individual to 
     whose elector position I have succeeded.''.
       Legislative Note: As with Sections 3 and 4, adjustment of 
     this Section is required for any state where unpledged 
     electors are permissible. For a state wishing to accommodate 
     unpledged electors, the language of subsections (b)(2), 
     (b)(3), and (c) could be changed to the following:
       (b)(2): ``if the alternate elector for the vacant position 
     is not present to vote but other alternate electors who were 
     nominated by the same political party [or unaffiliated 
     presidential candidate] are present, by appointing an elector 
     chosen by lot from among those alternate electors of the same 
     political party [or of the same unaffiliated presidential 
     candidate] .''
       (b)(3): ``if the vacant position is that of an unpledged 
     elector and the alternate elector for that vacant position is 
     not present to vote, or if there otherwise are no alternate 
     electors eligible for the vacant position under paragraphs 
     (1) and (2), by appointing any immediately available 
     individual who is qualified to serve as an elector and has 
     been chosen through nomination by and plurality vote of the 
     remaining electors, including nomination and vote by a single 
     elector if only one remains.''
       (c): ``To qualify as a substitute elector for a vacant 
     position associated with an elector who had executed a 
     pledge, an individual who has not executed the pledge 
     required under Section 4 shall execute the following pledge: 
     ``I agree to serve and to mark my ballots for President and 
     Vice President consistent with the pledge of the individual 
     to whose elector position I have succeeded''.''
       SECTION 7. ELECTOR VOTING.
       (a) At the time designated for elector voting and after all 
     vacant positions have been filled under Section 6, the 
     [Secretary of State] shall provide each elector with a 
     presidential and a vice-presidential ballot. The elector 
     shall mark the elector's presidential and vice-presidential 
     ballots with the elector's votes for the offices of President 
     and Vice President, respectively, along with the elector's 
     signature and the elector's legibly printed name.
       (b) Except as otherwise provided by law of this state other 
     than this [act], each elector shall present both completed 
     ballots to the [Secretary of State], who shall examine the 
     ballots and accept as cast all ballots of electors whose 
     votes are consistent with their pledges executed under 
     Section 4 or 6(c). Except as otherwise provided by law of 
     this state other than this [act], the [Secretary of State] 
     may not accept and may not count either an elector's 
     presidential or vice-presidential ballot if the elector has 
     not marked both ballots or has marked a ballot in violation 
     of the elector's pledge.
       (c) An elector who refuses to present a ballot, presents an 
     unmarked ballot, or presents a ballot marked in violation of 
     the elector's pledge executed under Section 4 or 6(c) vacates 
     the office of elector, creating a vacant position to be 
     filled under Section 6.
       (d) The [Secretary of State] shall distribute ballots to 
     and collect ballots from a substitute elector and repeat the 
     process under this section of examining ballots, declaring 
     and filling vacant positions as required, and recording 
     appropriately completed ballots from the substituted 
     electors, until all of this state's electoral votes have been 
     cast and recorded.
       SECTION 8. ELECTOR REPLACEMENT; ASSOCIATED CERTIFICATES.

[[Page H199]]

       (a) After the vote of this state's electors is completed, 
     if the final list of electors differs from any list that the 
     [Governor] previously included on a certificate of 
     ascertainment prepared and transmitted under 3 U.S.C. Section 
     6, the [Secretary of State] immediately shall prepare an 
     amended certificate of ascertainment and transmit it to the 
     [Governor] for the [Governor's] signature.
       (b) The [Governor] immediately shall deliver the signed 
     amended certificate of ascertainment to the [Secretary of 
     State] and a signed duplicate original of the amended 
     certificate of ascertainment to all individuals entitled to 
     receive this state's certificate of ascertainment, indicating 
     that the amended certificate of ascertaimnent is to be 
     substituted for the certificate of ascertainment previously 
     submitted.
       (c) The [Secretary of State] shall prepare a certificate of 
     vote. The electors on the final list shall sign the 
     certificate. The [Secretary of State] shall process and 
     transmit the signed certificate with the amended certificate 
     of ascertaimnent under 3 U.S.C. Sections 9, 10, and 11.
       SECTION 9. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In 
     applying and construing this uniform act, consideration must 
     be given to the need to promote uniformity of the law with 
     respect to its subject matter among states that enact it.
       SECTION 10. REPEALS. The following are repealed:
       (1) . . . 
       (2) . . . 
       (3) . . . 
       SECTION 11. EFFECTIVE DATE. This [act] takes effect . . . 

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