The Importance of Outlawing Faithless Electors

By Ethan Johnson


Distrust in Democratic Institutions:

History has told us that no regime is invincible. Only two years after the end of the First World War, the Nationalsozialistische Deutsche Arbeiterpartei (NSDAP), also known as the Nazi Party, was created. Slowly, the leaders of NSDAP created distrust in the democratic institutions that governed their country. After the ostracization of many political opponents and discussion of government reform, their charismatic party leader, Adolf Hitler, was appointed as Germany’s chancellor. On March 23, 1933, The Reichstag, Germany’s Congress of elected representatives, voted on and passed by an overwhelming majority the Enabling Act: the piece of legislation that ultimately gave Hitler the legal authority to sign any bill he wanted into law, ensuring there were no checks or balances on his now unparalleled power. They democratically chose to get rid of their democracy. While this is definitely an extreme example, it shows how dangerous distrust in democratic institutions can be for a country and the world. 

A more recent example of these effects is the insurrection following the 2020 presidential election. The election had endless allegations of election fraud coming from congresspeople, major news outlets, and the president himself, which led to the riot at the capitol on January 6, where the house of Congress was breached by hostile forces for the first time since 1814 (Holpuch). Many factors went into the setup of this abominable demonstration that ended in the death of four rioters and one police officer (Holpuch). An argument could be made that the most significant factor leading to this insurrection was the distrust in the United States’ democratic institutions, distrust that was sown by leaders in the government.

Both of these historical anecdotes demonstrate why it should be a priority of those at all levels of government to ensure that the citizens of our nation trust the democratic institutions, even when they may not trust the individuals in power. It should be made clear that distrust in democratic institutions does not necessarily mean distrust in democracy itself. Often, the distrust in institutions is because the people believe they are not being truly represented in their governments, which is what any democracy or republic is meant to do.

Why Distrust in Democratic Institutions can Usher in the Demise of our Democracy:

When distrust in the institutions of government leads to a feeling of illegitimacy of the state, a call for fundamental change follows. For democracies, this either means a drastic shift in how the democracy functions or a shift away from democracy altogether in favor of a more authoritarian form of government. Trump’s presidency is an example of the former, and Hitler’s rise to power is an example of the latter. 

In more precise terms, these shifts can be classified as populism and support for non-democratic rule. Both of these present an opportunity for politicians to gather enough support to fundamentally change the structure of their democratic governments to allow for more concentrated power for themselves at the top. The United States should make sure to avoid widespread and significant distrust in our democratic institutions to evade these movements that have taken away the democratic values of many countries. With the idea of popular sovereignty being so important to Americans, populism is the much more likely path away from democracy than support for non-democratic rule, so this memo will focus only on populism.

Populist leaders thrive on and exacerbate distrust in democratic institutions. Populism is manifested through “Manichean people-versus-elite discourse” (Hawkins and Littvay 1). While there could be pages upon pages on the exact meaning and intricacies of this definition, the simple lay translation is that populism is rhetoric that paints a black-and-white picture of a good and romanticized view of the people, often described as simply “the will of the people,” contrasted against an evil political or economic elite. Populists come to power with a call to reform the government in a way that the will of the people is better represented in government. In the 2016 presidential race, Bernie Sanders and Donald Trump both used populist rhetoric; Sanders focused on an evil economic elite he referred to as “the 1%,” while Trump focused on an evil political elite he referred to as “the swamp.” On a populism scale from 0 to 2, 2 being the most populist, Sanders hovered around 1.5 and Trump averaged at 0.8 (Hawkins and Littvay).

Political scientists agree that “populist attitudes are widespread” throughout the citizens of all democratic countries, but that a context of actual or perceived “failures of democra[cy]” is necessary to activate these political attitudes (Hawkins and Littvay 22-23). In recent decades, there has been a significant increase in the number of prominent moderate populists, populists who score between 0.5 and 1.4 on the populism scale, in European and American politics. This increase in support for populists logically suggests an increase in perceived failures of democracy and discontent with how democracies are currently run. Indeed, nearly all measures of trust in democracy and democratic institutions indicate that faith in and satisfaction with current democratic governments has fallen in the last thirty years, particularly among the younger generations (Foa and Mounk). Some of these moderate populists who have come to power since the turn of the century include Donald Trump of the United States, Stephen Harper of Canada, and Victor Orban of Hungary, who each reached the level of chief executive of their respective countries.

Figure 1 (Hawkins and Littvay 4).

Populists pose a potential problem for democracies if they come to power. One of the clearest findings from comparative research on populism is that once in power, “populists erode checks and balances, curtail civil liberties, and undermine the fairness of electoral competition” (Hawkins and Littvay 48). On its surface, this idea that populists can destroy democracies may seem ludicrous because populists champion rhetoric that firmly supports “popular sovereignty” and “democractic participation” (Hawkins and Littvay 48). However, populist leaders can use their claim to represent the will of the people to silence out-groups and claim more power for themselves and political allies. As these populist leaders continue to claim to operate for the people, they turn their democracies into “competitive authoritarian” governments where “opposition cannot fairly compete and alternative voices are increasingly silenced” (Hawkins and Littvay 48).

While the populist rhetoric of moderate populists such as Trump can be somewhat dangerous, as we saw on January 6 of this year in the United States, they do not threaten democracy the same way populists who score high on the populism scale, 1.5-2.0, do. These radical populists are unique in that they often propose political revolution in their campaigns for office. These radicals only come to power in times of significantly high levels of distrust in the democratic institutions of government. The most prominent instance of the rise of a radical populist is Hugo Chavez, who was democratically elected as the Venezualan president in 1998 because of rampant distrust in the elitist political parties in power at the time. Chavez subsequently remained in power until his death in 2013. In his 15 years of power, he degraded the role of the Venezualan legislature, increased the power of the executive, made the courts less independent from the executive, and overall brought the country of Venezuela away from democracy, with political scientists now classifying Venezuela as a “competitive authoritarian regime” (Balderacchi 504).

Venezuela is not alone. Several other countries around the world, including Turkey and Bolivia, have elected radical populists into power when the citizens had great distrust in the democratic institutions. Just like happened in Venezuela, the radical populist leaders of these countries tore down the legitimacy of democracy, seized power for themselves and their political allies, and brought these countries closer to an autocracy, all in the name of fulfilling the will of the people.

No matter what some American evangelicals may think, the United States is not immune to threats that can destroy our democracy. While the founding fathers created a strong and sturdy foundation for our democracy, its success is dependent on the citizens’ trust in that foundation.  If our country fails to consider the impacts of the distrust in democratic institutions, it could lead to the demise of our democracy disguised as populist rhetoric that supports popular sovereignty. 


Faithless Electors and Their Potential for Creating Significant Distrust in Democratic Institutions:

An opportunity for an amount of distrust in the democratic institutions of the United States which has yet to be seen in all of American history could present itself through the actions of electors. In recent years, the role of the electoral college in choosing our president has become a never ending debate; after all, why should a candidate who received a majority of the votes not win the election? Alas, this memorandum is not about whether the electoral college should continue to exist; rather, it is about the electors themselves.

Faithless electors, or electors who vote for a Presidential or Vice Presidential candidate whom they did not pledge to vote for, have the power to change the outcome of elections. Faithless electors are not altogether rare: the 2016 election alone had seven. With few notable exceptions, the results of the presidential election have always been known within a few days after election day in early November. The votes cast by the electors in mid-December is seen by many as merely an afterthought. It would be a shock to the entire population of the United States if a month after an election that resulted in a close but clear win by a candidate with a projected 271 or 272 electors, a few electors decide to vote faithlessly and change the result of that election. 

Undoubtedly, confusion, anger, and immense litigation would follow. If the election is certified by Congress and the president-elect is set to be inaugurated, many people would have deep distrust in the institutions that put in a president (or failed to remove a president) whom they see as illegitimate. It would become apparent that a selectorate of 538 electors, not the American people, chooses the chief executive of our government.

False information would not have to be spread, like it was after the 2020 election, for millions of Americans to believe that the election was stolen. This immense distrust in the fundamental democratic institutions that are products of the founding principles of the United States would result in catastrophic consequences. 

When citizens feel as though their voice is not represented in government, or simply that their votes have no effect, they look to create change to ensure popular sovereignty. This support for revolutionary change in democracy will lead to support for populists much more radical than the likes of Donald Trump. A leader similar to Hugo Chavez may very well lead such a movement, and if this leader gets elected to president of the United States, the end of our democracy could swiftly follow.

It is for this reason that restricting the ability for electors to vote faithlessly is an important policy to put in place in all 50 states and the District of Columbia.


While 33 states and the District of Columbia already have laws requiring electors to vote how they pledged, these same laws in 16 of these states and D.C. provide no legal mechanism to punish faithless electors or correct their vote (Fairvote). As it currently stands, 417 out of the 538 electoral votes can be legally cast faithlessly, a sizable number (Fairvote). 

Figure 2 (Fairvote).

The Uniform Law Commission, a non-partisan, non-profit, and private association, has drafted legislation called the “Faithless Presidential Electors Act” that, when enacted, gives the state the legal authority to cancel the faithless vote of an elector and replace him/her with another elector who will vote faithfully (Uniform Law Commission). The Faithless Presidential Electors Act has already been enacted in six states. The constitutionality of this and other legislation that restricts an elector’s ability to vote faithlessly was upheld by the Supreme Court in Chiafalo v. Washington decided in 2020 (US Supreme Court).

The adoption of the Faithless Presidential Electors Act by all states that do not yet have a law that provides a legal mechanism to stop a faithless vote from being cast may prevent a threat to our democracy that would have dire consequences for us all.


Balderacchi, Claudio. “Political Leadership and the Construction of Competitive Authoritarian Regimes in Latin America: Implications and Prospects for Democracy.” Democratization, vol. 25, no. 3, 2018, 504-523.

Fairvote. “Faithless Elector State Laws.” Resources, Fairvote, July 7, 2020.

Foa, Roberto Stefan and Yascha Mounk. “The Danger of Deconsolidation.” Journal of Democracy, vol. 27, no. 3, July 2016, 5-17.

Hawkins, Kirk and Levene Littvay. “Contemporary US Populism in Comparative Perspective.” e-book, Cambridge University Press, Cambridge, UK, 2019.

Holpuch, Amanda. “US Capitol’s Last Breach Was More Than 200 Years Ago.” US Politics, The Guardian, January 6, 2021.

Uniform Law Commission. “Faithful Presidential Electors Act.” Committees, Uniform Law Commission.

US Supreme Court. “591 U.S. No. 19-465: Opinion of the Court.” July 6, 2020.