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In 1988, I supported Michael Dukakis for President. After he lost the second debate to Bush, I wondered if it might be possible for him to salvage his campaign by "flipping the ticket," allowing his more broadly popular running mate, Lloyd Bentsen to run for President, while he ran for Vice-President.

It was late in the campaign, late October, and some states might have been able to accommodate a ticket switch to Bentsen-Dukakis, while others might have maintained Dukakis-Bentsen on the ballot. But could there have been a joint "call" by Dukakis, Bentsen and the Democratic party that electoral college members elected on any ticket with Dukakis and Bentsen on it should vote for Bentsen for President, and Dukakis for Vice-President? (One "faithless elector" from West Virginia, Margaret Leach, actually cast her ballot this way without being asked to.)

  • I've long wondered about the definition of "ballot" in Amendment XII and its relation to secrecy. If it's intended to be secret, it seems easier to 'flip', despite State laws. And if not secret, what's the primary point of "ballot"? – user2338816 Nov 26 '14 at 6:40
  • @user2338816 - I don't think there's an official definition, but I suspect the original intent was that they were secret ballots. Remember, it was passed in the days before fast communication and the rise of the popular vote - electors weren't necessarily chosen by the citizens, and it wasn't necessarily "winner take all" for the state. See here for the methods used for the election that inspired the 12th. – Bobson Nov 26 '14 at 15:46
  • @Bobson That fits with everything I've ever tracked down, which isn't much unfortunately. A 'secrecy' intention would seem to contradict binding by party. I'd prefer simply having a qualified Electoral College that could choose a good Executive. Much could be avoided, and a growing 'power of the Presidency' would seem to be less of an issue. – user2338816 Nov 26 '14 at 23:49
  • @user2338816 - I think that even just getting rid of "winner take all" would be a big step in that direction. Let each state determine how to dole out electors, but require there to be at least two methods. One per district and two at-large is the simplest (matching congressional elections), but if states wanted to get more complicated, they could. That would allow for much more nuanced results than the current "blue state/red state" division. – Bobson Nov 28 '14 at 19:08
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    @Bobson Love to discuss, but TL and maybe getting too far OT. Not likely to lose "winner take all" since 'parties' have been more and more in charge of Electoral College procedures, and they're unlikely to widen inroad gaps for 3rd parties. And that's part of why I'd like a "Secrecy" element to be enforced by SCOTUS. Perhaps the only viable route away from "winner take all". – user2338816 Nov 28 '14 at 21:51
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I can't say definitively whether the 1988 election could have "flipped" this way, but I can address it based on current law.

First of all, there are no federal restrictions on how electors vote, aside from the procedure specified in the 12th amendment ("cast a vote for President and a vote for VP, one of which has to be from a state that isn't yours"). Everything else boils down to "Follow your state laws."

As for the state laws, 24 of them place no restrictions on their electors, making it trivial for their party to tell them "Vote this other way".

For the remaining 26, it will vary from state to state. California, for instance, says:

The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent, one of whom, at least, is not an inhabitant of this state. (§ 6906)

So in CA, if the party decided to flip, the electors would be compelled to go along with.

For another example, while North Carolina doesn't explicitly say that the elector has to vote for their party's candidate, it does provide for penalties if they don't:

Any presidential elector having previously signified his consent to serve as such, who fails to attend and vote for the candidate of the political party which nominated such elector, for President and Vice-President of the United States at the time and place directed in G.S. 163-210 (except in case of sickness or other unavoidable accident) shall forfeit and pay to the State five hundred dollars ($500.00), to be recovered by the Attorney General in the Superior Court of Wake County. In addition to such forfeiture, refusal or failure to vote for the candidates of the political party which nominated such elector shall constitute a resignation from the office of elector, his vote shall not be recorded, and the remaining electors shall forthwith fill such vacancy as hereinbefore provided. (§ 163-212)

I haven't looked at the other 24 state's laws (I just picked those two at random), but the odds are good that the rest have similar language. The real question is whether it's possible for a party to change its candidate mid-cycle. That's even harder to track down, since states may not even have that codified into law. California, for example, simply directs the state's Secretary of State to handle it.


Some commentary:

I suspect that this is only something a party would do in the most desperate straits. The possibility of lawsuits and other challenges that could distract from the election, even if it turns out to be perfectly legal, on top of the the appearance of uncertainty it conveys to the electorate as a whole, means it's most likely better to lose the election than to damage your party's image across all branches of government.

A better alternative might be to have the presidential candidate withdraw himself entirely, bump the VP candidate, and have them choose a new VP. You'd have to have a pretty carefully managed crisis to pull it off, though. Something like a major car accident, a death in the family which causes a withdrawal from politics, etc.

If the presidential candidate ever happens to die during primary season, we'll likely find out the actual answer to this.

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    Shades of Robert Kennedy. – Affable Geek Nov 25 '14 at 21:24
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By mentioning the faithless elector issue, you've actually answered your own question. Electors are intentionally not required to vote for the candidate they were originally pledged to. (Ok, technically, there are laws against it in 29 states, but the fines are minimal). This allows electors to use their judgement if flipping the ticket is warranted.

In the election of 1872, the ticket was intentionally flipped by faithless electors.

In that election, Grant decisively beat Horace Greeley, editor of the NY Times. Unfortunately, Greeley went mad and died just a few days later. Greeley actually carried six states, but only received 3 electoral votes because - as stated - he was "sort of dead and crazy". His running mate, Benjamin Brown received 18 votes - even though he was the Vice Presidential nominee. (Note: Another 42 of Greeley's pledged electors ended up supporting Thomas Hendricks)

Technically, all but the three votes Greeley received were those of faithless electors - but this was mostly arrived at by consensus. (And, interestingly, the three faithful electors actually had their votes ultimately voided by Congress.) No law was needed, no procedure was broken, because these electors were able to respond to the situation and use their votes logically. It is probably one of the few times that most historians would point to as the electoral college actually preventing a crisis rather than creating one.

  • The laws against it may not have large fines, but some states (such as NC) say that if you vote wrong, your vote is not recorded and you're replaced. I don't know if that's ever been challenged in court, but it's pretty harsh on a would-be faithless elector's ability to do it. – Bobson Nov 25 '14 at 22:46
  • @Bobson: North Carolina was a "Bush" state, meaning that this issue wouldn't have come up in that state. – Tom Au Nov 26 '14 at 14:32
  • @TomAu - Michigan and South Carolina also have similar provisions. Not that it mattered in that election. – Bobson Nov 26 '14 at 15:35
  • Nowadays, this "fix" is no longer required because the 25th amendment will automatically "promote" the vice president-elect to president on Inauguration Day if the president-elect is dead. – Kevin Mar 13 '18 at 6:56

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