Is it possible for someone to win the presidency due to faithless electors?

Question

Suppose a presidential candidate wins over 270 pledged electors. If several of these pledged electors become faithless and cast their vote for the losing candidate, will the presidency actually go to the candidate with less than 270 pledged electors?

Answer 1

Yes. According to the 12th Amendment of the US Constitution

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed

Whoever gets an actual majority of electoral college votes is the President.

Electors have been faithless in the past, but have not yet impacted the outcome of an election in so doing, and typically are faithless from the side projected to lose the election (sort of as a protest vote or attempt to encourage winning electors to become faithless as well).

Answer 2

Rules on faithless electors vary state-to-state. In many states, a faithless elector will be removed from their position and replaced with a more faithful elector.

If we assume the faithless electors are not in states where that rule applies, and there are enough of them to change the outcome, then yes, the outcome will change. What is important is the electoral votes actually cast, not those pledged.

Answer 3

This happened in 1824. After the collapse of the Federalist Party, the US was left with just one viable political party: the Democratic-Republicans. Different factions within the party promoted different presidential candidates, with the following results:

• 99 electoral votes for Andrew Jackson
• 84 electoral votes for John Quincy Adams
• 41 electoral votes for William Crawford
• 37 electoral votes for Henry Clay

Jackson had a plurality, but not the majority required by the Constitution. The House of Representatives then went into session as required by the 12th Amendment to select between Jackson, Adams, and Crawford, and picked John Quincy Adams.

Answer 4

In theory yes, although it never happened. Whether an actual occurrence would trigger a constitutional crisis and a change of Federal law (or even the amending of the US Constitution) is anybody's guess, but a lot of legal commentary on a pair of 2020 US supreme court cases say that such a crisis has become extremely unlikely as a consequence of those recent decisions, at least as long as a sizable portion of the current Supreme Court composition does not change.

As Wikipedia reminds us, the key points are that

• All laws binding electors (to their pledges) originate at state level. The US Supreme Court has upheld these laws as constitutional (as recently as 2020!), but if (in theory) enough electors ignore any and all repercussions stemming from these state laws, there's nothing in the federal laws or Constitution that invalidates their "faithless" votes.

• There's a historical event, namely the election of 1836 in which the vice-president (but not the president's) election was almost invalidated by faithless electors. Ultimately it came down to a Senate vote.

During the 1836 election, Virginia's entire 23-man electoral delegation faithlessly abstained from voting for victorious Democratic vice presidential nominee Richard M. Johnson. The loss of Virginia's support caused Johnson to fall one electoral vote short of a majority, causing the vice-presidential election to be thrown into the U.S. Senate for the only time in American history. The presidential election itself was not in dispute because Virginia's electors voted for Democratic presidential nominee Martin Van Buren as pledged. The U.S. Senate ultimately elected Johnson as vice president after a party-line vote.

The United States Constitution does not specify a notion of pledging; no federal law or constitutional statute binds an elector's vote to anything. All pledging laws originate at the state level; the U.S. Supreme Court upheld these state laws in its 1952 ruling Ray v. Blair. In 2020, the Supreme Court also ruled in Chiafalo v. Washington that states are free to enforce laws that bind electors to voting for the winner of the popular vote in their state.

Frankly, it seems to me Wikipedia undersells the strength of the 2020 Supreme Court decisions in this matter. Other legal commentators (quoted by the press) have basically interpreted them as making a future constitutional crisis on these ground extremely implausible. Towards the end of this answer, you can read press-selected snippets from Kagan's (majority) opinion and judge for yourselves...

The state-imposed penalty that was contested in the case that was decided by the Supreme Court in 2020 (case originating in Washington state and from the 2016 election) was a $1,000 civil fine, which itself may not be a huge barrier for the (modestly) wealthy. However, the supreme justices fairly clear in their interpretation of principles (quoting from Wikipedia's page on the case):

Justice Elena Kagan wrote the majority opinion which all but Justice Clarence Thomas joined. Kagan wrote "Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State's popular vote. We hold that a State may do so... The Constitution's text and the Nation's history both support allowing a State to enforce an elector's pledge to support his party's nominee — and the state voters' choice — for President." Thomas wrote a concurrence that was partially joined by Justice Neil Gorsuch, adding that "nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people."

The more interesting part of the 2020 developments is that the US Supreme Court also ruled in Baca "per curiam" (i.e. following from the Washington case) that a Colorado law, which further allows the removal of a faithless elector was also constitutional. This despite some concerns that such a law more directly contradicts the 12th amendment:

Some legal scholars have questioned the Court's reliance on the appointment power of the states under Article II to justify control over electors, noting that similar Constitutional text that gave state legislatures the power to appoint senators (prior to the 17th Amendment) was never understood to include the power to control how they vote, and that removal and replacement of an elector, as in Baca, directly conflicts with the plain meaning of the text of the 12th Amendment, which mandates that once an elector casts a vote, it must be counted and included on a list that is sent to Congress.

NPR emphasized some other points from the decision (majority opinion):

Kagan's opinion noted that the original Electoral College system created by the framers of the Constitution failed to anticipate the growth of political parties. By 1796, the first contested election after George Washington's retirement, the system exploded in disarray, with two consecutive Electoral College "fiascos."

That led to passage of the 12th Amendment in 1804, "facilitating the Electoral College ... as a mechanism not for deliberation but for party line voting," Kagan wrote.

Nothing in the Constitution prevents the states from "taking away presidential electors' voting discretion," she said.

[...]

"The Constitution's text and the nation's history both support allowing a state to enforce an elector's pledge to support his party's nominee — and the state voters' choice — for President," Kagan wrote.

So, interestingly enough, the fact that there is no historical precedent for faithless electors (successfully) upturning an election was considered (by the court) an additional argument that it shouldn't be allowed to happen in the future either.

As further quoted by Reuters from the decision:

“The Constitution is barebones about electors” but there is a long history of electors acting as “trusty transmitters of other peoples’ decisions,” Kagan added.

A Harvard Law Review article called the decision a case of (enshrining) constitutional liquidation, meaning "the idea that when the Constitution’s text is ambiguous, meaning can be settled by well-established practice", noting Kagan herself quoted Madison (on whose views this approach is based), and based on that she e.g. reasoned that (as paraphrased in the Harvard article):

Justice Kagan noted that faithless electors are a historical anomaly and account for less than one percent of all electoral votes cast since the Founding. Thus, Justice Kagan concluded that history supported the constitutional understanding that states may sanction faithless elector.

Interestingly perhaps, the review also notes:

Though historical practice has always played a role in constitutional interpretation, explicit references to constitutional liquidation were uncommon until recently — the Court’s first detailed treatment of liquidation appeared in NLRB v. Noel Canning in 2014. In Chiafalo [v. Washington], the Court invoked this interpretive tool again.

Some legal commentators, including the author(s) of the Harvard article, disagree with the broad brushes that Kagan used to apply liquidation here, but they're not the justices sitting in the Supreme Court currently.

Answer 5

Sure, that’s what it means to have Electors. Also note that not only is this possible, various states have made this their policy, see the National Popular Vote Interstate Compact.

Also note that the recent Supreme Court decision on faithless electors means that the States can basically override the election anytime they want to.