Criminal Charges For Faithless Electors Are Highly Uncommon, But Legal In These States

With the 2016 presidential election growing ever closer, it's very possible that you're gaming out all the different possible outcomes in your head right now. If you're the kind of person who gets nervous about big, history-making elections, you're bound to wonder some things this close to the big day. For example, can faithless electors be criminally charged for bucking the will of the voters in their states? It highly uncommon.

If you're a newcomer to the ins and outs of the electoral college, the system by which presidents are selected, then it's possible you've never heard this term before. Under normal circumstances, when a candidate wins a state, all of the electors representing that state will end up voting in support of that candidate. But every now and then, an elector might go rogue, backing the candidate of their choosing, in spite of who drew the most support.

And while there can be legal consequences in certain situations, depending entirely on which state the faithless elector hails from, one important thing to know about the process is that the penalties don't necessarily prevent the vote from going through. On the contrary, in the vast majority of instances, the faithless elector's decision would stand, even if legal action were taken after the fact.

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So when can a faithless elector face legal consequences? As The Washington Post detailed in August, 29 states (as well as Washington, D.C.) have laws on the books that punish faithless electors, while 21 others do not. And the potential penalties vary widely from one state to the next ― while in Oklahoma it's a misdemeanor carrying a fine of up to $1,000, in New Mexico, it's a fourth-degree felony. Here are the states which have laws aimed at preventing faithless electors, as listed by the National Archives and Records Administration:

  • Alabama
  • Alaska
  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Florida
  • Hawaii
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Mississippi
  • Montana
  • Nebraska
  • New Mexico
  • North Carolina
  • Ohio
  • Oklahoma
  • Oregon
  • South Carolina
  • Vermont
  • Virginia
  • Washington
  • Wisconsin
  • Wyoming

But there's a crucial reality in all this. As the NARA notes, no faithless elector has ever actually been punished legally for what they did, so if you saw that happen this time around, it'd be an unprecedented moment. Which seems somehow very appropriate ― after all, there's been no shortage of history-making moments throughout the 2016 presidential election, in ways both good and bad.

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Of course, it remains to be seen if we'll have any faithless electors this time around. The last one came in 2004, when an elector cast their vote for Democratic vice presidential nominee John Edwards rather than the top of the ticket, John Kerry. So maybe Tim Kaine or Mike Pence might be in for a fun little surprise come December. But for what it's worth, that 2004 vote is widely believed to have been accidental.