Whereas: Stories from the People’s House

Congress and the Case of the Faithless Elector

James O'Hara/tiles/non-collection/1/11-17-Ohara-Collection.xml Collection of the U.S. House of Representatives Michigan Representative James O’Hara was the first to challenge the electoral vote count under the Electoral Count Act of 1887 in 1969.
On January 6, 1969, Democratic Representative James O’Hara of Michigan took a seat on the House Floor for what seemed like a routine day of business. The new 91st Congress (1969–1971) had been sworn in three days earlier and, as required by the Constitution, the House and Senate had gathered on the sixth in a Joint Session to count the votes in the Electoral College following the presidential election in the fall of 1968. There was no question about the outcome: former Republican Vice President Richard M. Nixon had decisively defeated the incumbent Vice President Democrat Hubert Humphrey and Alabama Governor George Wallace for the presidency. The Joint Meeting would simply make it official.

Since the late nineteenth century, the Electoral College count had occurred every four years without incident. This year, however, would be different.

Shortly after 1:00 p.m., tellers from the House and Senate began examining the election certificates of each state. The count had gone smoothly until the tellers announced that North Carolina’s electors had cast 12 votes for Nixon and one vote for Wallace. O’Hara stood from his seat. “For what purpose does the gentleman from Michigan rise?” the acting president of the Senate, who oversaw the vote count, asked. “For the purpose of objecting to the counting of the vote of North Carolina,” O’Hara answered.

It was the first time in American history that a Member of Congress filed a formal objection during the count of the Electoral College.

The Electoral College

The Electoral College is the system by which America chooses its President, and it is as old as the country itself. During the Constitutional Convention, as the Founders designed a government for the new nation, disagreements emerged over how to elect the President. Some in attendance favored a national popular vote, while others wanted Congress to select the chief executive. Their compromise—the Electoral College—was something of a hybrid. Under this system, when Americans vote for President, they technically do not vote for a candidate but instead for a slate of electors who promise to vote for that candidate in the Electoral College. The candidate who wins a majority of the vote in the Electoral College wins the presidency. (The candidate who wins the popular vote can still lose the Electoral College, as has happened five times in American history.)

Since 1961, the Electoral College has been made up of 538 electors: each state has the same number of electors as it does Senators and Representatives in Congress (for a total of 535), plus three electors from the District of Columbia. In the modern era, state political parties choose their electors, usually through a convention or party committee. Almost anyone can serve as an elector, except those who hold a federally elected or appointed position. In all but two states, the presidential candidate who wins the most votes on Election Day wins the entirety of that state’s vote in the Electoral College; Maine and Nebraska use systems based on pluralities in their specific congressional districts.

Frank Leslie's Illustrated Newspaper - 1877/tiles/non-collection/1/11-17-1877Election-2005_218_008.xml Collection of the U.S. House of Representatives
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This cover of the March 3, 1877, Frank Leslie’s Illustrated Newspaper shows the Senators of the Electoral Commission bringing the electoral certificates under investigation to the House Chamber.

Electors meet to vote in their states on the first Monday after the second Wednesday in December. The votes are recorded on election certificates, signed by the electors and state governors, and sent to Congress and the National Archives. Many states use strict rules and the threat of fines to “bind” electors to the candidate to whom they pledged their vote. The Constitution does, however, allow electors to change their vote. When they do, they are known as “faithless electors.” Faithless electors have occurred in eight presidential contests but they have never swayed the outcome.

Once states send their Electoral College results to Congress, the House and Senate gather in a Joint Session to certify the election. The incumbent Vice President presides over the count, while four tellers—two from the House, two from the Senate—tally the votes.

The 1876 Election

The Electoral College has failed to determine the outcome of three presidential elections. Following the first two occurrences—a tie in the Electoral College in 1800, and then in 1824 when no candidate won a majority—the House of Representatives, as required by the Constitution, settled the contest. But in 1876, when neither Ohio Republican Governor Rutherford B. Hayes nor New York Democratic Governor Samuel Tilden captured the 185 votes in the Electoral College then required to win, Congress opted for something different.

The result of the 1876 presidential election hinged on the contested returns from three southern states: Florida, Louisiana, and South Carolina. The elections that year saw former Confederates and white Democrats violently suppress Black and Republican voters to overthrow the biracial coalitions that had governed the states in the 11 years since the Civil War. As a result, the outgoing Republican administrations in Florida, Louisiana, and South Carolina sent Electoral College returns to Congress showing Hayes had won, while the incoming Democratic governors sent election results showing Tilden had won. Republicans on Capitol Hill refused to count the Democratic returns. In response, congressional Democrats challenged the constitutionality of an elector from Oregon. Congress suddenly faced a constitutional crisis. Because a combined twenty votes in the Electoral College from those four states remained contested, neither Hayes nor Tilden had been declared victorious. Hayes had 165 votes in the Electoral College and Tilden fell one short with 184.

At the time, Democrats controlled the House and Republicans controlled the Senate. But rather than allow the House to determine the winner, Congress created the Federal Electoral Commission in January 1877—a temporary bipartisan tribunal made of Senators, Representatives, and Supreme Court Justices. Following weeks of testimony and debate, the commission declared Hayes the winner.

Known as the “Compromise of 1877,” Democrats accepted the commission’s decision with the promise that Hayes would remove federal troops from the South who had been monitoring elections. With Republicans having ceded control of southern state governments to Democrats and former Confederates, the rigid and violent system of Jim Crow segregation took root across the region where it remained for another century.

Electoral Commission/tiles/non-collection/1/11-17-ElectoralCommission-LoC.xml Image courtesy of the Library of Congress This image, which appeared in Frank Leslie’s Illustrated Newspaper on March 10, 1877, shows the Electoral Commission meeting by candle light in the Old Supreme Court Chamber in the Capitol.

Electoral Count Act of 1887

Hoping to avoid a repeat of the legitimacy crisis of 1876 election, Congress passed the Electoral Count Act in 1887.

The Electoral Count Act left it to the states to settle front-end Electoral College issues, including the selection of electors and the methods used to bind them to pledged candidates. But once the process reached Congress, the law gave Members the power to object to a vote if they believed it had not been “regularly given”—parliamentary speak for votes with particular discrepancies, those cast on the wrong day or for an ineligible candidate, or for votes suspected of being part of a bribery scheme.

In order to challenge a vote in the Electoral College, the Electoral Count Act requires one Representative and one Senator to sign an objection together and present it to Congress during the Joint Session. The counting procedure then halts, and the House and Senate gather in their respective chambers for debate. The Electoral Count Act limits the debate on the objection to two hours and only allows Members to speak for up to five minutes. Both houses of Congress must agree to the objection in order to void the electoral vote in question.

For decades, the act sat largely unused. But 82 years after the Electoral Count Act became law, James O’Hara of Michigan invoked it to challenge the result of the 1968 presidential election.

The 1968 Presidential Election

During the 1968 presidential election, former Vice President, Republican Richard M. Nixon, faced the incumbent Vice President Democrat Hubert Humphrey and a third candidate, Alabama Governor George Wallace, who ran as an Independent.

Wallace was an ardent segregationist who opposed Black civil rights and had little chance of winning the presidency. But he devised a plan that he hoped would enable him to wield influence over the next administration. Wallace believed that if he captured enough votes in the Electoral College to prevent both Nixon and Humphrey from capturing a majority, he could play powerbroker by instructing his delegates to vote for whichever candidate promised to enact his preferred policies. It was a quid pro quo not unlike Hayes’s promise to Democrats to pull federal troops out of the South in 1877.

1969 Electoral College Tally/tiles/non-collection/1/11-17-1969Count-NARA.xml Image courtesy of the National Archives and Records Administration The clerk tallying the official electoral count for the 1968 presidential election needed to write in the number of votes for North Carolina after the House and Senate debated the objection to the faithless elector.

Initially it seemed as though Wallace’s plan could work. Even late into the fall of 1968, there was little indication that either Humphrey or Nixon would win a majority of the Electoral College. But Nixon ultimately won the presidency with room to spare, taking 301 votes in the Electoral College but with only a slim majority of the popular vote. Humphrey captured 191 votes and Wallace 46. By January 6, 1969, the country was preparing for a Republican inauguration.

The Faithless Elector

When Congress gathered to count the Electoral College in a Joint Meeting on January 6, 1969, Vice President Humphrey was overseas attending the funeral of Trygve Lie, the United Nation’s first secretary general. In Humphrey’s absence, Senator Richard Russell of Georgia, the president pro tempore of the Senate, oversaw the proceedings. Two mahogany boxes containing the Electoral College certificates from all 50 states and the District of Columbia sat in front of him on the House rostrum.

When Russell pulled the North Carolina election certificate from the box, Senator Benjamin Jordan of North Carolina stated it was “regular in form and authentic.” Jordan announced that Nixon had received 12 votes for President and that Wallace had received one vote.

After Jordan finished speaking, O’Hara and Democratic Senator Edmund Muskie of Maine—Humphrey’s vice-presidential running mate—filed their objection to North Carolina’s certificate. Specifically, they objected to a faithless elector—the kind of elector Wallace had hoped to use to swing the outcome of a close presidential contest. Except in this case the faithless elector in question—Dr. Lloyd W. Bailey of Rocky Mount, North Carolina—had voted for Wallace despite his initial pledge to support Nixon.

Bailey’s vote for Wallace was not unconstitutional, it did not break North Carolina law, and it did not sway the outcome of the election. Bailey said he broke from Nixon because Wallace “polled a large vote in his area,” and he believed the Electoral College allowed “checks and balances which guarantee that the minority voice be heard.”

But O’Hara and Muskie wanted Congress to reject Bailey’s vote to discourage faithless electors in the future. They objected, they said, to maintain “the integrity of this election under the present system and to effectively dramatize the dangers of continuing to operate under this outmoded, haphazard and undemocratic method of electing a President.”

Following O’Hara’s and Muskie’s objection, the Joint Session recessed to allow the House and Senate to consider the issue separately. In the House, James Wright Jr. of Texas opened debate in support of O’Hara’s objection, arguing that faithless electors threatened the democratic process. Such “kingmakers,” as they were known, would become the norm. “Shall we declare that [the people] have no authority whatever to require that their votes be faithfully reflected by their agents, the electors—no right, no remedy, no resource and no protection against the faithless elector who betrays their trust, abuses his office, disdains their wishes, and cavalierly substitutes his will for theirs?”

1969 Electoral College Count Joint Session/tiles/non-collection/1/11-17-69JointSession-Collection.xml Collection of the U.S. House of Representatives
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As President pro tempore of the Senate, Senator Richard Russell announced Richard M. Nixon the winner of the 1968 presidential election, after the House and Senate debated the objection of a North Carolina elector’s vote.

Others, like veteran lawmaker William McCulloch of Ohio, defended faithless electors. “Today, the objectors ask us to circumvent the [constitutional] amending process. They ask us to do what we have criticized so often before—to read into the Constitution what we wish the law to be. . . . They ask us to adopt a view which not only differs from but which is diametrically opposed to the way the Constitution was written.” Citing the 1876 election, McCulloch argued the objection process should be reserved for cases when Congress received two sets of returns. “But once the real set is determined, the votes must be counted,” he said. “Nothing in title III [of the Electoral Count Act] empowers Congress to change or disregard votes because an elector has been unfaithful.”

O’Hara sat quietly during most of the debate. He rose in the closing minutes to say, “Only the Congress can see to it that the elector respects his obligations, and the only way we can do it is by sustaining the objection that the junior Senator from Maine, Senator Muskie, and I have filed.”

The House ultimately rejected O’Hara and Muskie’s objection, 228 to 170, as did the Senate, 58 to 33. When Congress resumed the Joint Session at 4:45 p.m., Senator Russell announced that “the original certificate submitted by the State of North Carolina will be counted and provided therein.”

Stephanie Tubbs Jones/tiles/non-collection/1/11-17-Tubbs-Jones-Collection.xml Collection of the U.S. House of Representatives Ohio Congresswoman Stephanie Tubbs Jones challenged the electoral vote count in 2005 with Senator Barbara Boxer.

The Second Objection

The only other time a Member of Congress objected to a vote in the Electoral College happened 36 years later, on January 6, 2005, during the Joint Session to certify Republican George W. Bush’s re-election as President. Representative Stephanie Tubbs Jones of Ohio objected to all the Electoral College votes from her home state citing what she described as widespread voting irregularities, particularly in low-income and African-American neighborhoods. Senator Barbara Boxer of California co-signed the objection. “This objection . . . is a necessary, timely, and appropriate opportunity to review and remedy the most precious process in our democracy,” Jones told her House colleagues at the start of the debate. “I raise the objection to debate the process and protect the integrity of the true will of the people.” Ultimately, Congress rejected Jones’s objection.

Amending the Process

O’Hara’s challenge to a faithless elector in 1969 occurred amid a broader effort to reform how America selected its President. Although O’Hara’s objection failed, many in Congress supported its intent. The House Majority Whip, Democrat Hale Boggs of Louisiana, backed a constitutional amendment to “once and for all get rid of this anachronistic provision” concerning faithless electors. House Minority Leader Republican Gerald Ford of Michigan called for quick action as well. But other Members wanted to go farther. “It is important that we keep the pressure on for reform,” House Republican Conference chair John B. Anderson of Illinois, told the Los Angeles Times. “I for one would abolish the Electoral College rather than simply try to apply a Band-Aid.” In fact, in 1969 the House approved a constitutional amendment to abolish the Electoral College, but the bill failed in the Senate.

Still, O’Hara had been optimistic for reform. “While we had hoped to establish a precedent that might have deterred future faithless electors,” O’Hara later said about his objection, “the purpose of that challenge was in part educational—to once again remind the public and the Congress of the power of the presidential electors, and the danger inherent in that power.”

Sources: Congressional Record, House, 91st Congress, 1st sess. (6 January 1969): 146–149, 170–172; Congressional Record, House, 91st Congress, 1st sess. (28 January 1969): 1992; Congressional Record, House, 109th Congress, 1st sess. (6 January 2005): 199; Chicago Tribune, 7 January 1969; Los Angeles Times, 7 January 1969; New York Times, 3 January 1969, 29 January 1969, 6 January 2005; Washington Post, 17 June 1968; Jack Maskell and Elizabeth Rybicki, “Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress,” Report RL32717, 16 November 2016, Congressional Research Service; Michael F. Holt, By One Vote: The Disputed Presidential Election of 1876, (Lawrence, KS: University Press of Kansas, 2008); Stephen A. Siegel, “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887,” Florida Law Review, Vol. 56, (2004); National Archives and Records Administration, “Electoral College,” 23 December 2019, https://www.archives.gov/electoral-college.