[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language which superseded it in the 12th Amendment.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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