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Hi, Fidelity

‘Hi, Fidelity’: States’ Rights to Control Faithless Electors

By: Tim Lovett, Volume 103 Staff Member


The 2016 election had the most faithless electors of any presidential election in modern American history, with seven electors casting votes for individuals different from the candidates who won the electors’ respective state’s popular votes.[1] While previous elections have featured many more faithless electors, there were often extenuating circumstances: in 1872 the presidential candidate died after the election but before the electoral college gathered, and in 1836 and 1828 there were many faithless electors voting against Vice Presidential Candidates.[2]

During the 2016 General Election, electors from Hawaii, Texas, and Washington submitted votes for Bernie Sanders, Ron Paul and John Kasich, and Colin Powell and Faith Spotted Eagle, respectively.[3] But for the actions of other state governments, the total number of faithless votes cast would have almost certainly been higher. Electors in Maine, Colorado, and Minnesota all attempted to cast faithless votes, but were replaced by their state’s officials with electors who would vote consistent with the results of the state’s popular vote.[4] After being removed from their positions as electors, or forced to change their votes to reflect the state’s majority, several of the elector’s brought cases against their states’ government and officers, alleging a variety of wrongs. These removals have resulted in at least four[5] lawsuits, three of which have been dismissed at the pleading stages. Each of those three sought similar remedies and were dismissed on similar grounds.


State electors, as a part of the Electoral College, are fundamental to American elections.[6] The Constitution, however, does not set out the requirements for who can be an elector. Instead, each state legislature to appoints the electors in a manner it chooses.[7] Notably absent from the Constitution is the power to remove[8].

States have created various methods for corralling electors to vote in a way consistent with their state’s winning candidate, with at least thirty imposing some form of restriction on electors.[9] Some go so far as to impose criminal or monetary punishments on faithless electors,[10]while others remove would-be faithless electors or restrict their ability to cast dissenting votes[11].

Each of the three cases below sought injunctive relief. Injunctive relief requests that a court take action to either prevent or compel action by the other party.[12] In order to gain an injunction, the allegedly harmed part must show “that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted.”[13] In each of these cases, the electors sought, and failed, to meet both standards.

The Minnesota Case

In Minnesota, Democratic Party elector Muhammad Abdurrahman made clear his intention to vote for Bernie Sanders for president, in place of Hillary Clinton.[14] When he attempted to actually submit his vote to Steve Simon, the Minnesota Secretary of State, the latter refused to accept and count Abdurrahman’s vote. Simon declared that Abdurrahman had vacated the office of elector and installed a different elector who proceeded to vote for Clinton.[15] That same day, Abdurrahman brought suit, seeking a Temporary Restraining Order (TRO) (i.e. an injunction) on the grounds that to deprive him of his vote would cause him irreparable harm.[16]

Minnesota’s controlling presidential elector act is a codification of the Uniform Faithless Presidential Electors Act (UEFA). [17] Thus, if it is found invalid on constitutional grounds, similarly codified statutes in Indiana, Montana, Nebraska, and Nevada would be unconstitutional as well.[18]

Neither the Minnesota District Court nor the Eight Circuit Court of Appeals believed there was sufficient chance of Abdurrahman’s case succeeding on the merits to justify the granting of a TRO.[19] The court additionally found that the issue was moot because there were not sufficient grounds to find that Abdurrahman would be harmed in a similar matter again.[20]

Strangely, and unaddressed by either court, is that by his action Abdurrahman may very well preclude his ability to be a future elector. The nature of the injury cannot be repeated—it is hard to conceive of either party reinstating a faithless elector. The courts’ logic becomes circular: because the injury, by its nature, cannot be repeated, there are no grounds to prevent it, but it is only not repeatable because the injuring party (in this case the state or the party) will choose to ensure that the injury is permanently disqualifying. A suitable plaintiff seems to not exist, and perhaps only a class of potential faithless electors could conceivably have standing.

The Colorado Case

In Baca v. Hickenlooper,[21] two plaintiff electors sought a preliminary injunction, hoping to prevent an action from occurring that would either cause or perpetuate injury. Both plaintiffs had, in accordance with Colorado statute, signed agreements that they would vote consistent with Colorado popular vote.[22] Failure to follow the popular vote would result in the removal of the elector and his or her replacement. For a variety of reasons, including no pressing public interest, no evidence of irreparable harm, and no grounds to claim a lack of free speech, the court denied the motion for preliminary judgment[23].

Fundamental to this decision is the belief that a court will not grant an injunction because it “would irreparably harm the status quo and the public’s general expectations” and, under Tenth Circuit case law, the court must attempt to adhere to the status quo.[24] The court finds that the status quo demands the state have the ability to overrule the intention of the electors[25] While this aligns with the Electoral College’s organic clause allowing for the appointment of electors, it employs the inertia of status quo to provide a Constitutional avoidance argument on whether the state can remove an elector.

The Washington Case

Two Washington electors, P. Bret Chiafalo and Levi Guerra, argued that RCW 29A.56.340[26] was illegal because it imposed a $1,000 fine in the instance of voting against the state’s majority, which Guerra would be unable to pay in the event of voting for her own choice.[27] The plaintiffs brought a request for a TRO and a preliminary injunction on four separate constitutional counts. Based on the unlikely chance of success of the plaintiffs’ claims, the motion failed and the case was dismissed[28]. The Washington court partially based its decision on Baca, finding that Colorado’s statute was more constraining than Washginton’s, but Baca and the other plaintiffs were nonetheless denied an injunction.

Ambiguity afterward

Consistent in all three cases is the courts’ conclusion that each case failed on its individual merits and denial of each request for injunctive relief. Additionally, each court did not fully grasp the injury suffered by the plaintiff. It is clear that future would-be faithless electors must clear two hurdles: they must show that there is a true injury, and they must establish that the status quo does not merit perpetuation.

One possible argument against a court’s reliance on the status quo could be that the entire purpose of the Electoral College, and electors in general, becomes secondary if states can fully dictate the rights and security of electors. If the electors are not trusted to act in the best interest for the country, as opposed to following the designs of a specific state, the electoral college is nothing more than a vestige of constitutional antiquity. Perhaps the best method to argue for greater elector sovereignty is to argue for the necessity of the Electoral College itself, and to bring a claim on behalf of all its members, as opposed to the rights of the individual electors.

  1. See Faithless Electors, Fair Vote, (last visited Oct. 10, 2018).
  2. Id.
  3. Kiersten Schmidt & Wilson Andrews, A Historic Number of Electors Defected, and Most Were Supposed to Vote for Clinton, N.Y. Times (Dec. 19, 2016),
  4. Id.
  5. Abdurrahman v. Dayton, 903 F.3d 813 (8th Cir. 2018); Baca v. Hickenlooper, No. 16-CV-02986-WYD-NYW, 2016 WL 7384286 (D. Colo. Dec. 21, 2016); Chiafalo v. Inslee, 224 F. Supp. 3d 1140, 1143 (W.D. Wash. 2016); Koller v. Brown, 224 F.Supp.3d 871 (N.D. Cal. 2016).
  6. U.S. Const. amends. XII, XX.
  7. U.S. Const. art. I, § 1.
  8. Id.
  9. Alexander Gouzoules, The Faithless Elector and 2016: Constitutional Uncertainty after the Election of Donald Trump, 28 Fla. J. L. & Pub. Pol’y 215, 226–28 n.61–95 (2017).
  10. See, e.g., N.C. GEN. STAT. § 163-212 (1998) and OKLA. STAT. tit. 26, § 10-102 (2013), § 10-109 (1975).
  11. See, e.g.MONT. CODE ANN. § 13-25-307 (2011) and UTAH CODE ANN. § 20A-13-304 (1995).
  12. Injunction, Black’s Law Dictionary (10th ed. 2014). 
  13. Id.
  14. Abdurrahman v. Dayton, No. 16-CV-4279 (PAM/HB), 2016 WL 7428193, at *1 (D. Minn. Dec. 23, 2016)
  15. Id.
  16. Id.
  17. Minn. Stat. Ann. § 208.40–48 (West 2015).
  18. Faithful Presidential Electors Act, Uniform Law Commission, (last visited Oct. 10, 2018).
  19. Abdurrahman v. Dayton, No. 16-CV-4279 (PAM/HB), 2016 WL 7428193, at *4 (D. Minn. Dec. 23, 2016); Abdurrahman v. Dayton, 903 F.3d 813 (8th Cir. 2018) (citations omitted). 
  20. Abdurrahman v. Dayton, 903 F.3d 813 (8th Cir. 2018) (citations omitted).
  21. Baca v. Hickenlooper, No. 16-CV-02986-WYD-NYW, 2016 WL 7384286 (D. Colo. Dec. 21, 2016).
  22. Colo. Rev. Stat. § 1–4–304 (1980).
  23. Baca v. Hickenlooper, 2016 WL 7384286, at *1.
  24. Id. at *5.
  25. Id.
  26. The statute says, inter alia, that “Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.“ RCW 29A.56.340.
  27. Chiafalo v. Inslee, 224 F. Supp. 3d 1140, 1143 (W.D. Wash. 2016) (citation omitted).
  28. Id. at 1140.