As Chatterbox has noted before (see also these pieces by Matthew Miller and Gregg Easterbook),if only three Bush-pledged electors switch their votes to Gore when the Electoral College meets Dec. 18, Al Gore will be elevated to the presidency, rendering irrelevant all previous machinations by Florida canvassing boards, Florida state judges, the Florida State Legislature, and the U.S. Supreme Court. The possibility that "faithless electors" acting within the law (though outside the bounds of polite society) could make Gore president has drawn official opprobrium from Gore, but it has fired the imaginations of Democratic consultant Bob Beckel (who has suggested he's only really advocating electoral abstentions), Daniel Schorr, the Coalition Coalition, Citizens for True Democracy, and some visitors to the E The People Web site. Bush electors have been bombarded with calls from journalists and political activists asking how they intend to vote when they gather in 50 state capitals and the District of Columbia. What they aren't getting is much good advice on what they should do. So Chatterbox has created an advice column for them. The questions are made up, but the answers are not.
Dear Dr. F.,
You claim that the breaking of an elector's pledge is perfectly legal. But Section 163-212 of the North Carolina General Statutes says that a violation of my pledge would cancel my vote, require the other electors to replace me, and subject me to a $500 fine. Are you trying to get me in trouble?
Restless in Raleigh
Gotta admit, that's one tough-sounding statute! You have to pay the $500 fine even if you simply fail to show up and don't have a good excuse! (That happens all the time, incidentally, and the electors are hastily replaced.) The fine's actually a bit stiffer ($1,000) in Oklahoma, and in New Mexico violating your elector pledge is a felony!
But there's a pretty solid consensus within the legal community that the laws in 26 states and the District of Columbia banning electoral faithlessness aren't worth the paper they're printed on. That's because they're at odds with Article II of the U.S. Constitution, which spells out voting procedures for the Electoral College. As the U.S. Supreme Court demonstrated earlier this week, it gets very tetchy when it thinks state governments are ignoring the U.S. Constitution! Although the Supreme Court has ruled that political parties may require electors to pledge to vote for the party nominee, it has never ruled on whether those pledges are enforceable by law. More to the point, in more than 200 years of American history, no presidential elector has ever been prosecuted for faithlessness.
Short answer: If you go faithless in North Carolina, you may have to hire a lawyer, but your vote will almost certainly be counted in the Electoral College (provided it isn't disqualified by the U.S. Congress--more on that later).
Remember, too, that 24 states don't even try to penalize faithless electors. For a complete inventory of which states do and don't outlaw electoral faithlessness, click here.
Dear Dr. F.,