America’s democratic process for selecting the president and vice president is not based on the direct vote of the people. This is evident when candidates can win the national popular vote but lose because their opponent wins the Electoral College.
The Electoral College has played a crucial role in the election of the president and vice president on five occasions (1824, 1876, 1888, 2000, and 2016), when the president and vice president have been elected without winning the national popular vote.
The Constitutional Basis for the Electoral College
Article 2, Section 1, Clause 2 of the U.S. Constitution provides that the president and vice president are to be chosen by electors in “Each State . . . in such Manner as the Legislature thereof may direct . . . equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . . .” The criteria for the electors is left to each state, with the exception that federal officeholders are prohibited from being electors.
During the Constitutional Convention of 1787, the creation of an electoral college was offered as an alternative to the popular vote and congressional district-based election.
In Federalists Papers No. 68, Alexander Hamilton asserted that electors were free agents and that “[a] small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” This would change with the growth of the nation and political parties.
By 1836, a statewide winner-take-all choice of electors became the universal practice. The only deviations have been the adoption in 1972 by Maine and in 1992 by Nebraska of district plans where electors are chosen by election in their Congressional districts, as well as two at-large electors assigned to the winner of the statewide popular vote.
After the 1876 election, in which the electoral votes were tied and a political settlement was brokered to elect Rutherford Hayes over Samuel Tilden and end the stationing of federal troops in the South, Congress enacted the Electoral Count Act. The Act was poorly written and would be amended after the 2020 election to define the limited role of the vice president in tallying the electoral college votes.
The Electoral College Process
Electors are on the ballot through their selection by the political parties or the presidential campaigns. They are intended to vote for their nominee. In presidential general elections, voters are officially voting for the political party’s slate of electors, not the actual presidential and vice presidential candidates.
The Faithless Elector
The problem of the faithless elector arises when electors selected to support one candidate vote for a different candidate. It arises because there is no expressed provision in the Constitution or federal statute binding an elector’s vote. Most state legislation provides that electors are to vote for the popular winner in casting a vote in the Electoral College. Thirty-two states and the District of Columbia mandate that electors vote for the candidate to whom they are pledged. Most states, however, do not enforce this pledge.
In the history of presidential elections, 179 electors have chosen not to vote for the candidate to whom they were pledged: 106 because of a personal preference, 71 because the candidate died before the election, and two because of abstention. Among the faithless electors in 2016 were electors in Washington State and Colorado. Washington fined the faithless electors. Colorado voided the faithless voter’s ballot. On July 6, 2020, in a unanimous decision, the U.S Supreme Court in Chiafalo v. Washington, 591 U.S. ___ (2020), and Colorado Department of State v. Baca, 591 U.S. ___ (2020), held that the states may enforce laws to punish faithless electors. The Chiafalo and Baca decisions rejected the elector’s free agent theory espoused by Hamilton.