A bill that seeks to prevent “faithless electors” among California’s electoral college members during presidential elections has passed unanimously in both houses of the state legislature and now awaits Governor Gavin Newsom’s final decision.
A faithless elector is someone who does not vote for the candidate they had pledged to vote for as a member of the electoral college.
Authored by Senator Bill Dodd (D-Napa), Senate Bill 103 would require that electors pledge their votes to the winning presidential and vice presidential candidates. Electors who fail to vote for the winning candidates must vacate their position, have their vote voided, and be replaced by an alternate.
This would also remove current fines and punishments for faithless electors as outlined in state law.
“We must protect the legitimacy of our free election process and prevent extreme partisanship from denying the will of the voters,” Senator Dodd wrote in an Aug. 11 press release. “Today we take a step toward ensuring electors uphold their responsibilities and do not go rogue, threatening the underpinnings of our democracy. I thank my fellow legislators for sending this bill to the governor.”
The issue of faithless electors arose in the 2016 presidential election when Hawaii, Texas, and Washington reported electors casting votes for candidates other than the state winners. However, California has never reported cases of faithless electors in state history.
“I’m not really sure what [SB103] would do for California,” criminal attorney and constitutional historian Robert McWhirter told NTD, a sister media of The Epoch Times, on Aug. 16. “California is such a Democratic stronghold.”
Political Party Control
Some experts have said that the bill will only solidify something that the founding fathers never intended in the political process, a two-party rule.
McWhirter said the founding fathers never intended for political parties to control a body of electors or for direct democracy. The United States operates as a democratic republic—citizens vote for a group of people who represent the interests of the people and make decisions on their behalf.
The Founding Fathers and framers of the Constitution established the idea of an electoral college as a compromise between electing the president through a vote in Congress versus a popular vote by qualified citizens.
The Constitution does not use the term “electoral college.” Article II of the Constitution and the 12th Amendment refer to electors.
“Over time, the political parties got a hold of [the electoral college] and they passed statutes in states—like with California’s proposal—that require electors to follow the will of the party,” said McWhirter. “The party controls the electors, and they’re not independents.”
He said that the framers of the Constitution intended electors to have more independence to keep “immoral people” from becoming president.
Electors today are chosen based on a “political slate,” and the party that wins the most votes in the statewide election will send its electors to send the final vote for president, according to Paul Engel, an author and the founder of The Constitution Study.
“We really haven’t seen an issue with faithless electors recently,” Engel told NTD on Aug. 16. “In the past, when electors were truly free to vote their conscience—back before political parties took over the process—it was more of an issue from the standpoint of it happening more. But it was less of an issue because there wasn’t the expectation [to vote based on political parties]. … Only today, as we have this politicized partisan process, does the idea of faithless electors really mean anything.”
However, he added that states are responsible for managing domestic affairs and the interests of the individual people.
“The states determine how they appoint electors, so California is perfectly within its right, its power to say this is how we’re going to appoint electors,” said Engel. “It doesn’t prevent faithless electors, as it does two things—it requires electors to promise to vote for the party that nominated them; and, if you fail to do so or if you fail to vote, then you’re basically kicked out as an elector and that’s now a vacant seat.”
SB103 was first introduced in 2021 and has passed with little opposition. It received a bipartisan 38–0 Senate vote in April, with senators Monique Limón (D-Ventura) and Henry Stern (D-San Fernando Valley) abstaining.
The bill now waits for the governor’s signature or veto following a 76–0 Assembly vote in August, with assemblymembers Richard Bloom (D-Santa Monica), Sharon Quirk-Silva (D-Fullerton), Randy Voepel (R-Santee), and Lori Wilson (D-Fairfield) abstaining.