What happens on Monday

Since it rarely is an issue, there is a lot of misunderstanding about the electoral vote that will happen on Monday. Most people know each state gets a number of votes equal to the number of House members plus the number of senators (435+100) and the District of Columbia gets 3 votes because of the 23rd Amendment passed in 1961.

In keeping with the United States being a Republic (a confederatin of 50 independent states) and not a democracy, the electoral voting process is left to each state. There is no big meeting in a big room with 538 people trying to get other electors to change their mind.

There are 51 separate meetings on the same day. The people at the meeting cast their votes, the result is put on an official document to be hand delivered to Washington DC to be opened on January 6th before a joint session of the new Congress that took office on January 3rd, and the totals announced. Separate numbers are added up for President and Vice President.

Once that piece of paper is created, there is no “do over” even if the Presidential candidates resign or die (like Horace Greeley did in 1872) – the electors do not reconvene.

The notion that people vote for the President is a relatively new idea, made more practical by improvements in transportation and communication. The actual constitutional process:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The idea that the electors are winner take all as a result of a statewide vote is not a requirement. Maine and Nebraska choose electors by congressional district, and the 2 “senator” votes are based on the statewide total. In the old days, state legislatures or political parties just selected the electors based on their own elections.

So we have 51 different processes in 51 states. In some states, the November election elected specific individuals to be electors. In other states, people elected parties and delegates to the party Convention choose the electors, usually at a meeting of the state party after the national nominating convention.

So what happens if an elector shows up on Monday and refuses to vote for the candidate who won the popular vote in their state? There are 51 different answers. Since Donald Trump won all the electors in Maine and Nebraska, all 51 meetings will be members of the same political party.

How the process works is written into state statutes. The process has to deal with contingencies like an elector not showing up or refusing to vote, or a weather emergency, natural disaster, marshal law, etc

In North Carolina, here is the relevant law: (search on StateName electors law To find the rules in your state.

Article 18. Presidential Electors.

§ 163-208. Conduct of presidential election.
Unless otherwise provided, the election of presidential electors shall be conducted and the returns made in the manner prescribed by this Chapter for the election of State officers. (1901, c. 89, s. 79; Rev., s. 4371; C.S., s. 6009; 1933, c. 165, s. 11; 1967, c. 775, s. 1.)

§ 163-209. Names of presidential electors not printed on ballots; notification

(a) The names of candidates for electors of President and Vice-President nominated by any political party recognized in this State under G.S. 163-96, or nominated under G.S. 163-1(c) by a candidate for President of the United States who has qualified to have his or her name printed on the general election ballot as an unaffiliated candidate under G.S. 163-122, shall be filed with the Secretary of State but shall not be printed on the ballot. In the case of the unaffiliated candidate, the names of candidates for electors must be filed with the Secretary of State no later than 12:00 noon on the first Friday in August. In place of their names, there shall be printed on the ballot the names of the candidates for President and Vice-President of each political party recognized in this State, and the name of any candidate for President who has qualified to have his or her name printed on the general election ballot under G.S. 163-122. A candidate for President who has qualified for the general election ballot as an unaffiliated candidate under G.S. 163-122 shall, no later than 12:00 noon on the first Friday in August, file with the State Board of Elections the name of a candidate for Vice-President, whose name shall also be printed on the ballot. A vote for the candidates named on the ballot shall be a vote for the electors of the party or unaffiliated candidate by which those candidates were nominated and whose names have been filed with the Secretary of State.

[note the electors were chosen in August after the Convention in Cleveland]

(b) Upon receiving the filing of a name as a candidate for elector under this section, the Secretary of State shall notify that candidate of the dual-office holding requirements of the North Carolina Constitution and the General Statutes, including specifically that if a person elected as elector holds another elective office at the time of taking the oath of office as elector, that other office is vacated upon taking the oath of office. (1901, c. 89, s. 78; Rev., s. 4372; C.S., s. 6010; 1933, c. 165, s. 11; 1949, c. 672, s. 2; 1967, c. 775, s. 1; 1991 (Reg. Sess., 1992), c. 782, s. 2; 2001-460, s. 5; 2009-96, s. 2.)

§ 163-209.1. Notification of political parties of dual-office holding rules.
During January of each year in which electors are elected, the Secretary of State shall notify each political party authorized to nominate electors of (i) the requirement under G.S. 163-1(c) to nominate first and second alternate electors, and (ii) the dual-office holding requirements of the North Carolina Constitution and the General Statutes, including specifically that if a person elected as elector holds another elective office at the time of taking the oath of office as elector, that other office is vacated upon taking the oath of office. (2009-96, s. 3.)

§ 163-209.2. Elector may be held in addition to other appointive offices.
The office of elector may be held in addition to the maximum number of appointive offices allowed by G.S. 128-1.1. (2009-96, s. 1.)

§ 163-210. Governor to proclaim results; casting State’s vote for President and Vice-President.

Upon receipt of the certifications prepared by the State Board of Elections and delivered in accordance with G.S. 163-182.15, the Secretary of State, under seal of the office, shall notify the Governor of the names of the persons elected to the office of elector for President and Vice-President of the United States as stated in the abstracts of the State Board of Elections. Thereupon, the Governor shall immediately issue a proclamation setting forth the names of the electors and instructing them to be present in the old Hall of the House of Representatives in the State Capitol in the City of Raleigh at noon on the first Monday after the second Wednesday in December next after their election, at which time the electors shall meet and vote on behalf of the State for President and Vice-President of the United States. The Governor shall cause this proclamation to be published in the daily newspapers published in the City of Raleigh. Notice may additionally be made on a radio or television station or both, but such notice shall be in addition to the newspaper and other required notice. The Secretary of State is responsible for making the actual arrangements for the meeting, preparing the agenda, and inviting guests. [the meeting is not open to the public]

Before the date fixed for the meeting of the electors [December 19th], the Governor [McCrory -R] shall send by registered mail to the Archivist of the United States, either three duplicate original certificates, or one original certificate and two authenticated copies of the Certificates of Ascertainment, under the great seal of the State setting forth the names of the persons chosen as presidential electors for this State and the number of votes cast for each. [popular vote total] These Certificates of Ascertainment should be sent as soon as possible after the election, but must be received before the Electoral College meeting. At the same time the Governor shall deliver to the electors six duplicate originals of the same certificate, each bearing the great seal of the State. At any time prior to receipt of the certificate of the Governor or within 48 hours thereafter, any person elected to the office of elector may resign by submitting his resignation, written and duly verified, to the Governor. Failure to so resign shall signify consent to serve and to cast his vote for the candidate of the political party which nominated such elector.
In case of the absence, ineligibility or resignation of any elector chosen, or if the proper number of electors shall for any cause be deficient, the first and second alternates, respectively, who were nominated under G.S. 163-1(c), shall fill the first two vacancies. If the alternates are absent, ineligible, resign, or were not chosen, or if there are more than two vacancies, then the electors present at the required meeting shall forthwith elect from the citizens of the State a sufficient number of persons to fill the deficiency, and the persons chosen shall be deemed qualified electors to vote for President and Vice-President of the United States. (1901, c. 89, s. 81; Rev., s. 4374; 1917, c. 176, s. 2; C.S., ss. 5916, 6012; 1923, c. 111, s. 12; 1927, c. 260, s. 17; 1933, c. 165, s. 11; 1935, c. 143, s. 2; 1967, c. 775, s. 1; 1969, c. 949, ss. 1, 2; 1981, c. 35, s. 1; 1989, c. 93, s. 5; 1993 (Reg. Sess., 1994), c. 738, s. 1; 2001-398, s. 8.)

[so the paperwork filed in August contained two extras as spares – if there is a deficit, the people in the room choose the replacements, perhaps the janitor and security guard]

§ 163-211. Compensation of presidential electors.

Presidential electors shall be paid, for attending the meeting held in the City of Raleigh on the first Monday after the second Wednesday in December next after their election, the sum of forty-four dollars ($44.00) per day and traveling expenses at the rate of seventeen cents (17¢) per mile in going to and returning home from the required meeting. (1901, c. 89, s. 84; Rev., s. 2761; C.S., s. 3878; 1933, c. 5; 1967, c. 775, s. 1; 1979, c. 1008.)

§ 163-212. Penalty for failure of presidential elector to attend and vote.

Any presidential elector having previously signified his consent to serve as such, who fails to attend and vote for the candidate of the political party which nominated such elector, for President and Vice-President of the United States at the time and place directed in G.S. 163-210 (except in case of sickness or other unavoidable accident) shall forfeit and pay to the State five hundred dollars ($500.00), to be recovered by the Attorney General in the Superior Court of Wake County. In addition to such forfeiture, refusal or failure to vote for the candidates of the political party which nominated such elector shall constitute a resignation from the office of elector, his vote shall not be recorded, and the remaining electors shall forthwith fill such vacancy as hereinbefore provided.
The clear proceeds of forfeitures provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. (1901, c. 89, s. 83; Rev., s. 4375; C.S., s. 6013; 1933, c. 165, s. 11; 1967, c. 775, s. 1; 1969, c. 949, s. 3; 1998-215, s. 131.)

§ 163-213. Appointment of Presidential Electors by General Assembly in certain circumstances, by the Governor in certain other circumstances.

[what happens if the board of elections had not certified a winner by December 13th]

(a) Appointment by General Assembly if No Proclamation by Six Days Before Electors’ Meeting Day. – As permitted by 3 U.S.C. § 2, whenever the appointment of any Presidential Elector has not been proclaimed under G.S. 163-210 before noon on the date for settling controversies specified by 3 U.S.C. § 5, and upon the call of an extra session pursuant to the North Carolina Constitution for the purposes of this section, the General Assembly may fill the position of any Presidential Electors whose election is not yet proclaimed.
(b) Appointment by Governor if No Appointment by the Day Before Electors’ Meeting Day. – If the appointment of any Presidential Elector has not been proclaimed under G.S. 163-210 before noon on the date for settling controversies specified by 3 U.S.C. § 5, nor appointed by the General Assembly by noon on the day before the day set for the meeting of Presidential Electors by 3 U.S.C. § 7, then the Governor shall appoint that Elector.
(c) Standard for Decision by General Assembly and Governor. – In exercising their authority under subsections (a) and (b) of this section, the General Assembly and the Governor shall designate Electors in accord with their best judgment of the will of the electorate. The decisions of the General Assembly or Governor under subsections (a) and (b) of this section are not subject to judicial review, except to ensure that applicable statutory and constitutional procedures were followed. The judgment itself of what was the will of the electorate is not subject to judicial review.

[The general assembly and governor can’t force electors to change their vote]

(d) Proclamation Before Electors’ Meeting Day Controls. – If the proclamation of any Presidential Elector under G.S. 163-210 is made any time before noon on the day set for the meeting of Presidential Electors by 3 U.S.C. § 7, then that proclamation shall control over an appointment made by the General Assembly or the Governor. This section does not preclude litigation otherwise provided by law to challenge the validity of the proclamation or the procedures that resulted in that proclamation. (2001-289, s. 2.)

So in summary, if an elector chooses to not vote for Trump, that is a resignation as elector, and the other electors name the replacement elector, either from the two alternates or anyone elegible who agrees to vote for Trump.

So the statute is silent on who actually runs this meeting and enforces the law. Generally, it is the State Party Chairman of the political Party that won the election. Could a state party chairman nullify the law and release the electors to “vote their conscience”?

Any questions?

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6 Responses to What happens on Monday

  1. Parrott says:

    That’s nice they include ‘DC’ and allow them to vote with all of the other ’57’ states : )

    Pretty wild, thanks for the overview Fred.
    parrott

    • Fred Stiening says:

      Note that while Puerto Rico, Samoa, Guam, etc participated in the primary, they have no say in the general election. If the choice devolved to the House per the 12th amendment process, it is not clear if DC is considered a “state”. I think they would be, but others have said no.

  2. Fred Stiening says:

    All states holding this vote on the same day would have prevented any type of collusion, allowing the actions of one state to influence another state. However, when the Constitution was written and amended, there were not 6 different time zones. Noon local time was the same time everywhere, or at most an hour different if noon was based on the position of the sun.

    If any kind of shenanigans do break out, the time zone difference could allow unintended consequences.

  3. Fred Stiening says:

    The Texas version
    http://www.statutes.legis.state.tx.us/Docs/EL/htm/EL.192.htm

    It clarifies that when the meeting starts, the Secretary of State is the temporary chairman – their only duty is to conduct the election of the chairman of the meeting from among the electors. In the event there are not enough electors, the State Party chooses the replacements.

    There is no provision in the Texas statutes for punishing or disqualifying an elector who refuses to vote for Trump.

  4. Fred Stiening says:

    Candidate “X” has been chosen in Washington State. If for any reason, Donald Trump is not still a viable President-Elect on January 6th and the “top three” rule of the Twelfth amendment kicks in, the top three finishers are Donald Trump, Hillary Clinton and Colin Powell. The House would be allowed to name a replacement for Trump, and then states would choose among Powell, Hillary and the person to be named later. If they stay deadlocked until January 20th, Mike Pence becomes acting President.

    Once the vote is hopefully final on January 6th, the rules of presidential succession kick in during the following two weeks, with the VP elect moving up to President elect if Trump dies from choking on a Big Mac. Stuff happens.

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