D R A F T
FOR DISCUSSION ONLY
FAITHFUL PRESIDENTIAL ELECTORS ACT
NATIONAL CONFERENCE OF
COMMISSIONERS
ON UNIFORM STATE LAWS
Without Prefatory Note and with Comments
For
December 4 – 5
MEETING IN ITS
ONE-HUNDRED-AND-EIGHTEENTH YEAR
SANTA FE, NEW MEXICO
JULY 9 - JULY 16,
2009 Committee
Meeting
FAITHFUL PRESIDENTIAL ELECTORS ACT
WITHOUT PREFATORY NOTE AND WITH COMMENTS
Copyright 82009
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The
ideas and conclusions set forth in this draft, including the proposed statutory
language and any comments or reporter=s notes, have not been
passed upon by the National Conference of Commissioners on Uniform State Laws
or the Drafting Committee. They do not
necessarily reflect the views of the Conference and its Commissioners and the
Drafting Committee and its Members and Reporter. Proposed statutory language may not be used
to ascertain the intent or meaning of any promulgated final statutory proposal.
November
17
June 1, 2009
DRAFTING
COMMITTEE ON FAITHFUL PRESIDENTIAL ELECTORS ACT
The Committee
appointed by and representing the National Conference of Commissioners on
Uniform State Laws in drafting this Act consists of the following individuals:
Susan Kelly Nichols,
North Carolina Department of Justice, P.O. Box 629, Raleigh, NC 27602-0629, Chair
James Bopp, Jr., 1 South 6th St., Terre Haute, IN 47807
James M. Bush, 3003 N. Central Ave., Suite 2600, Phoenix,
AZ 85012
Richard A. Champagne, Legislative Reference Bureau, One East Main
St., Suite 200, Madison, WI 53701-2037
Jess O. Hale, Jr., Office of Legal Services, G-16 War Memorial
Bldg., Nashville, TN 37243-0059
Gene N. Lebrun, P.O. Box
8250, 909 St. Joseph St., Suite 900, Rapid City, SD 57709
Lane Shetterly, 189 SW Academy St., P.O. Box
105, Dallas, OR 97338
LARRY L. RUTH, 530 S. 13th St., Suite
110, Lincoln, NE 68508-2820
J. SAMUEL TENENBAUM, Northwestern University
School of Law, 357 E. Chicago Ave., Chicago, IL 60611
TERESA ANN TILLER, House Legislative Services
Office, P.O. Box 1018, Jackson, MS 39215-1018
CAM WARD, 124 Newgate Rd., Alabaster, AL 35007
MICHAEL J. WILKINS, 450 S. State St., 5th
Floor, P.O. Box 140210, Salt Lake City, UT 84114-0210
Robert Bennett, Northwestern University School of Law, 357 E.
Chicago Ave., Chicago, IL 60611, Reporter
EX OFFICIO
ROBERT A. STEIN, University Of Minnesota Law School, 229 19th Avenue South, Minneapolis,
MN 55455, President
Martha Lee Walters, Oregon Supreme Court, 1163 State St., Salem, OR
97301-2563,
President
Jack Davies, 1201 Yale Place, Unit #2004, Minneapolis,
MN 55403-1961, Division Chair
AMERICAN BAR ASSOCIATION
ADVISOR
John Hardin Young, 300 M St. SE, Suite 1102,
Washington, DC 20006, ABA Advisor
EXECUTIVE
DIRECTOR
John A. Sebert, 111 N. Wabash
Ave., Suite 1010, Chicago, IL 60602, Executive Director
Copies of this Act
may be obtained from:
NATIONAL CONFERENCE
OF COMMISSIONERS
ON UNIFORM
STATE LAWS
111 N. Wabash
Ave., Suite 1010
Chicago,
Illinois 60602
312/450-6600
www.nccusl.org
FAITHFUL PRESIDENTIAL ELECTORS ACT
TABLE OF CONTENTS
SECTION 1. SHORT TITLE. 1
SECTION 2.
DEFINITIONS. 1
SECTION 3.
DESIGNATION OF STATE’S ELECTORS. 2
SECTION 4.
IDENTIFICATION OF ELECTORS. 3
SECTION 5.
PRESIDING OFFICER; ELECTOR VACANCIES.VACANCY.. 4
SECTION 6.
ELECTOR VOTING. 5
SECTION 7.
NOTIFICATION OF ELECTOR REPLACEMENTS AND HANDLING
SECTION 8.
DEATHUNIFORMITY OF PRESIDENTIAL OR VICE-PRESIDENTIAL CANDIDATE.APPLICATION AND CONSTRUCTION.. 7
SECTION 9.
UNIFORMITY OF
APPLICATION AND CONSTRUCTION.REPEALS. 8
SECTION 10.
REPEALS.EFFECTIVE DATE.. 8
SECTION 11.
EFFECTIVE DATE. 8
FAITHFUL PRESIDENTIAL ELECTORS ACT
SECTION 1. SHORT TITLE. This [act] may be cited as the Faithful Presidential
Electors Act.
SECTION 2. DEFINITIONS. In this [act]; ]:
(1)
“Elector” means an individual identified under [applicable state statute] and the
procedures of this [act] as a presidential elector.
(2)
“Faithful” elector means an elector who designates on the presidential and
vice- presidential ballots provided to electors under Section 6 the
presidential and vice-presidential candidates of the political party that
nominated that elector or that nominated the elector whose position was filled
by the designating elector. {Our Style Liaison has suggested that this
definition be removed because it “is used only in the title of the act, the
short title, and the definition itself.
In addition, the definition is substantively redundant because the act
imposes no obligation on an elector to vote faithfully; instead, the act
imposes an obligation on the Secretary of State to reject the ballot of any
elector who does not vote faithfully.”
The question of whether to keep it may be moot if the Committee chooses
another of the suggested titles for the Act.}
(3)
“President” means the President of the United States.
(4 (2) “President” means the President of the United States.
(3)
“Vice-President” means the Vice-President of the United States.
(4)
“Winning presidential candidate” means the candidate for President qualified under the laws of this state who receives the greatest number of
qualified popular votes in this state for the office of President.
(5) “Winning vice-presidential
candidate” means the candidate for Vice-President qualified under the laws of
this state who is the vice-presidential running mate of the winning
presidential candidate.
Legislative Note: As of 2009, there are two states—Maine and
Nebraska—where some electors are chosen in congressional district-wide, rather
than state-wide, elections. In addition,
there seems to be one state—Mississippi—where a slate of unpledged electors may
qualify for the general election ballot.
These definitions would have to be adapted to make room for these
possibilities.
SECTION 3. DESIGNATION OF STATE’S ELECTORS. For each elector position in this state, a
political party contesting the position shall submit to the [SecretaryTwo lists
of State]
the names of two qualified individuals. qualified
to be electors in this state, each list containing a number of names equal to
the number of electors allocated to this state under the United States
Constitution, shall be submitted to the [Secretary of State] for each slate of
candidates for President and Vice-President under [applicable state statute]. One of those individualslist
must be designated “elector nominee”,nominees”
and the othersecond list must be designated
“alternate elector nominee”.nominees.” Each individual on the two lists shall
execute and sign the following pledge: “If selected for the position of
elector, I agree to serve and to cast my ballots for the winning presidential
candidate for President and for the winning
vice-presidential candidate for Vice-President for the nominees for those
offices of the party that nominated me for the position of elector or alternate
elector.”..” The executed pledges must accompany the
corresponding namesshall be attached to the respective lists when
submitted to the [Secretary of State].
Except as otherwise provided in Section 4, the persons
on the list of elector nominees submitted for the winning presidential and
vice-presidential candidates are this state’s electors are the
winning elector nominees under the laws of this state..
Legislative Note: Most states do not at the present time provide for the initial
selectionelection of alternate electors. Two states that do are Minnesota
and Hawaii, although even they do not designateemploy an alternate for each
elector position.slate of
the exact size as the state’s electoral college delegation. This section uses the device of elected
alternates as a convenient vehicle for facilitating the filling of elector
vacancies, which is dealt with under Section 5. But alternates are not essential for the
filling of vacancies, nor does the designationa slate of alternates for each
elector position absolutely
guarantee that the alternates will suffice for the filling of all vacancies that conceivably might arise. For thesethose reasons, a state might not
employ the device of an elected slate of alternates, in
which case adjustment of this section and of Sections 4 and 5 would be
necessary.
Adaptation of this section may also be required in Mississippi or other states where unpledged some electors might beare chosen in districts, currently Maine and
Nebraska, or where unpledged slates of electors, currently Mississippi, are
permissible.
Comment
{New
Section 8 addresses the possibility of the death of a candidate for president
or vice president before the electors vote.
It is included for discussion in light of comments received at the 2009
Annual Meeting. This comment will be modified if necessary after
the Committee decides whether to include a Section in the Act on the death of a
candidate.}
The possible death or disability of presidential and
vice-presidential candidates raises questions which the
Act does not address. The
candidates presumably become president and vice-president “elect” after the
elector voting, assuming they receive the required majorities. The United
States Constitution provides a mechanism for dealing with vacancies that arise
after the president and vice-president elect have been chosen. See U.S. CONSTConst. amend. XX, §§ 3 & 4. But aside from some state laws that deal with
the subject, there is no clear guidance in the Constitution, federal statutes
or case law about the effect of death or disability between election day and
elector voting.
Questions that might arise with respect to electors
include whether an elector is impliedly released from a pledge taken under
Section 3 on account of the death or disability of a
candidate. If
that were the appropriate interpretation, then further questions would be
raised about whether elector discretion would then be appropriate or some
mechanism would be supplied for providing substitute candidates. The Committee at its
initial meeting thought that difficult enactability problems could
be presented by attempting to address the effect on electors of such death or
disability of candidates between the general
election and elector voting. However, the Committee welcomes suggestions on
these matters from the Conference.
SECTION
4. IDENTIFICATION OF ELECTORS. In submitting this state’s certificate of
ascertainment as required by 3 U.S.C. Section 6, the [Governor] shall certify
both
this state’s electors and this state’s alternate electors, and. The [Governor] shall explicitly recite
in the
certificate that:
certification 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, pursuant to state law,
substitute replacement electors will be chosen
to fill those the vacancies,
from among the alternate electors if possible; and
(2) if substitution of electors is required, the [Governor] will submit an
amended certificate of ascertainment specifying the names of a complete set of
the state’s
electors, including the replacement electors, who are entitled to
cast this state’s electoral votes.
Legislative Note: The federal statute assigns duties
to a state’s “executive,” and most state statutes that identify the officer employspecify the Governor to carry out
those duties. States could presumably opt for a different executive officer, both
in this Section and in Section 7.
(a) The
[Secretary of State] shall preside at the meeting of electors. If any elected
elector is unable to be present, the position of the electors are not
present at the meeting, the positions of the absent elector is electors
are deemed to be vacant. A
vacancy that occurs for that or any other reason
shall be filled with the assistance of the [Secretary of State] in
the following manner:
(1) by the
alternate elector associated with the absent elector, if the alternate elector
is present at the meeting;
(2) if the associated alternate elector is not present
at the meeting, byBy lot from among the alternate electors nominated
by the political party of the absent elector who are present at the
meeting;.
(3) if (2) If alternate electors present at the
meeting are insufficient to fill anythe vacancies pursuant
to paragraphs (1) and (2),, by any immediately available individuals who are qualified to
serve as electors, through a process ofby
nomination by and a plurality vote of the remaining
electors,
including choice by a the single
elector if only one remains;.
(4) if (3) If no
substitute elector receives a plurality vote pursuant to paragraph (3)2), but there is
a tie among two or more candidates each with the same plurality vote, by
lot from among the candidates having the same plurality vote; and.
(5) if (4) If all elector and alternate elector positions are
vacant
and cannot be filled pursuant to paragraphs (1) through (4),,
the [Secretary of State] shall designate a single presidential elector, with
remaining vacancies filled under paragraph (3),2) and, if
necessary, paragraph (4).3).
(b) To qualify as a substitute
elector under subsection (a),,
an individual who has not previously executed and signed the pledge required
under Section 3 must execute and sign the following pledge: “I
agree to cast my ballots for presidential and vice-presidential candidates for
the nominees for those offices of the party that nominated for the position of
elector the individual to whose elector position I have succeeded.”.that
pledge.
Legislative Note: Adjustment Adjustments would be required for the
districting
approach of Maine and Nebraska and the unpledged elector possibility
inapproach of
Mississippi.
SECTION 6. ELECTOR VOTING. At the time designated for elector voting, and after any
vacancies have been filled under Section 5, the [Secretary of State] shall
provide each elector with a presidential ballot and a
vice-presidential ballot. The elector shall mark the elector’s
presidential ballot and vice-presidential ballot with the elector’s votedesignate
votes for the office of President and Vice-President,those
offices respectively, along with the elector’s signature and the elector’selector's legibly printed name.
Each elector shall present both completed ballots to [the Secretary of
State],]
who shall examine them and record as cast all ballots of electors who voted consistently
with their pledges under Section 3 or 5. The [Secretary of State] shall not
cast for the winning presidential and shall not
countwinning vice-presidential candidates
respectively. Neither an
elector’s presidential ornor
vice-presidential ballot is to be cast, and neither shall be counted, if the elector has left either ballot blank or has marked either
ballotfails to vote for the winning presidential or
winning vice-presidential candidate in violation of the elector’s
pledge. required
under Section 3 or 5. An elector who presents a blank ballot or a ballot in
violation of the pledge required under Section 3 or 5 is
deemed to have resigned from the office of elector, creating a vacancy to be
filled as provided in Section 5. The [Secretary of State] shall then distribute
to and collect ballots from properly substituted electors and repeat the
process of examining ballots, declaring and filling vacancies as required, and
casting and recording appropriately completed ballots from the substituted
electors, until all of the state’s electoral votes have been cast by electors who
vote consistently with their pledgesrecord as cast votes for the
winning presidential and winning vice-presidential candidates until a full slate
of elector votes has been recorded as cast.
SECTION 7. NOTIFICATION OF ELECTOR REPLACEMENTS AND
HANDLING OF
ASSOCIATED CERTIFICATES. After the vote of this
state’s electors is completedelector
votes are cast, if the final list of electors differs from any
list that [the [Governor] has
previously included on a certificate of ascertainment prepared and transmittedsubmitted
pursuant to 3 U.S.C. Section 6, the [Secretary of State] shall immediately
prepare an amended certificate of ascertainment containing the final list and
transmit itthe certificate
to [the
[Governor]
for [the
[Governor’s]
signature. [The [Governor]
shall expeditiously deliver the signed, amended
certificate of ascertainment to the [Secretary of State] and to all federal,
state, and local officials entitled to receive this state’s certificate of
ascertainment, including the President of the United States Senate and each of
this state’s electors on the final list, indicating that thethis
amended certificate of ascertainment is to be substituted for the certificate
of ascertainment previously submitted.
The [Secretary of State] shall prepare a certificate of vote for the
electors on the final list to sign, process, and transmit along with the
substituted certificate of ascertainment as provided in 3 U.S.C. Sections 9,
10, and 11.
Comment
The Constitution imposes no impediment to a state’s Secretary of State serving as an elector, and state statutes do
not appear to preclude that possibility.
If a state wanted to guard against that remote possibility, it could presumably do
so explicitly. In addition, it is
possible that the Secretary of State might call on other state officials to
help in carrying out duties assigned under the Uniform Act. The power to do so can probably be presumed,
but there would be no harm in a state making such a possibility explicit. In
addition, those states which prohibit the holding of two elective offices may
wish to provide explicitly that no elected official may be elected to serve as
an elector.
SECTION
8. DEATH
OF PRESIDENTIAL OR VICE-PRESIDENTIAL CANDIDATE.
(a) If the
presidential candidate for whom an elector pledges to vote pursuant to Section
3 or 5 dies before the elector votes pursuant to Section 6, the elector
fulfills the pledge only if the elector marks the elector’s presidential and
vice-presidential ballots as follows:
(1) the presidential ballot for the
vice-presidential candidate of the political party that nominated that elector
or that nominated the elector to whose position the voting elector succeeded;
and
(2)
the vice-presidential ballot for the substitute vice-presidential candidate designated
by that political party.
(b) If the vice-presidential candidate for whom an
elector pledges to vote pursuant to Section 3 or 5 dies before the elector
votes pursuant to Section 6, the elector fulfills the pledge only if the
elector marks the elector’s presidential and vice-presidential ballots as
follows:
(1) the presidential ballot for the
presidential candidate described in the elector’s pledge pursuant to Section 3
or 5; and
(2) the substitute vice-presidential
candidate designated by the political party that nominated that elector or, if
the elector filled a vacancy under Section 5, the political party that
nominated the elector to whose position the voting elector succeeded.
(c) If both the presidential and vice-presidential candidates
for whom an elector pledges to vote pursuant to Section 3 or 5 die before the
elector votes pursuant to Section 6, the elector fulfills the pledge only if
the elector marks the elector’s presidential and vice-presidential ballots
respectively for the substitute presidential and vice-presidential candidates
designated by the political party that nominated that elector or, if the
elector filled a vacancy under Section 5, the political party that nominated
the elector to whose position the voting elector succeeded.
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 10.9. REPEALS. The following are repealed:______________.: ________.
SECTION 11.10. EFFECTIVE DATE. This [act] takes effect. . . .
________________.