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, 2009 Committee Meeting
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, 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
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
FAITHFUL
PRESIDENTIAL ELECTORS ACT
TABLE
OF CONTENTS
SECTION
3. DESIGNATION OF STATE’S ELECTORS.
SECTION
4. IDENTIFICATION OF ELECTORS.
SECTION
5. PRESIDING OFFICER; ELECTOR VACANCIES.
SECTION
7. NOTIFICATION OF ELECTOR REPLACEMENTS
AND HANDLING OF ASSOCIATED CERTIFICATES.
SECTION
8. DEATH OF PRESIDENTIAL OR
VICE-PRESIDENTIAL CANDIDATE.
SECTION
9. UNIFORMITY OF APPLICATION AND
CONSTRUCTION.
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) “Vice-President”
means the 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 shall submit to the [Secretary of State]
the names of two qualified individuals. One of those individuals must be
designated “elector nominee”, and the other “alternate elector nominee”. Each
individual shall execute and sign the following pledge: “If selected for the
position of elector, I agree to serve and to cast my ballots for President and
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 names submitted to the [Secretary of State]. Except as otherwise provided in Section 4,
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 selection of alternate electors. Two states that do are
Minnesota and Hawaii, although even they do not designate an alternate for each
elector position. 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 designation of alternates for each elector position
absolutely guarantee that the alternates will suffice for the filling of all
vacancies that conceivably might arise. For these reasons, a state might not
employ the device 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 electors might be
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. CONST. 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 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.
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 shall explicitly recite 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, pursuant to state law, substitute electors will be chosen to fill those
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 employ 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 absent elector is 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, by lot from among alternate
electors nominated by the political party of the absent elector who are present
at the meeting;
(3) if alternate electors present at the meeting are insufficient to fill
any vacancies pursuant to paragraphs (1) and (2), by any immediately available
individuals who are qualified to
serve as
electors, through a process of nomination by and a plurality vote of the remaining
electors,
including choice by a single elector if only one remains;
(4) if pursuant to paragraph (3) there is a tie among two or more
candidates, by lot from among the candidates having the same plurality vote;
and
(5) if all 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), and,
if necessary, paragraph (4).
(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.”.
Legislative Note: Adjustment would be required for the unpledged
elector possibility in 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 and a vice-presidential ballot. The
elector shall mark the elector’s presidential ballot and vice-presidential
ballot with the elector’s vote for the office of President and Vice-President,
respectively, along with the elector’s signature and the elector’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 and shall
not count an elector’s presidential or vice-presidential ballot if the elector
has left either ballot blank or has marked either ballot in violation of the elector’s
pledge. An elector who presents a blank ballot or a ballot in violation of the pledge
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 pledges.
SECTION 7. NOTIFICATION OF ELECTOR REPLACEMENTS AND
HANDLING OF ASSOCIATED CERTIFICATES. After the vote of this state’s electors is
completed, if the final list of electors differs from any list that the [Governor]
has previously included on a certificate of ascertainment prepared and
transmitted 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 it 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 the 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.
(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. REPEALS. The following are repealed:______________.
SECTION 11. EFFECTIVE DATE. This [act] takes effect. . . .