August 02, 2019

Demystifying the Electoral College

What is the Electoral College?

The Electoral College is a body of people appointed by each U.S. state and the District of Columbia, who elect the president and vice president. Voters in each state and the District of Columbia select electors to be the authorized participants in each presidential election.

The electors cast electoral votes after the general election and officially elect the president and vice president. Since 1964, there have been 538 electors in each presidential election, comprised of the total number of members of the U.S. House of Representatives (435), plus he total number of U.S. Senators (100), plus three electoral votes for the District of Columbia.

What does the U.S. Constitution say about the Electoral College?

Article II, Section I of the U.S. Constitution outlines that each state should appoint electors, sets the number of electors for each state (number of senators + number of representatives = total representatives in Congress), restricts members of Congress and federal employees from serving as electors, and details both the post-election meeting process within the states and final certification
of the election results by Congress.

There are also two amendments to the Constitution related to the Electoral College. The Twelfth Amendment, ratified in 1803, made an important change to the electoral voting protocol. As the Electoral College was outlined in the Constitution, electors in each state cast two votes for president, and the candidate who received the most votes would become president while the candidate with the second most votes would become vice president. After the election of 1800, electors cast an equal number of votes for candidates Thomas Jefferson and Aaron Burr. The Electoral College was tied. Who would be president and who would be vice president? Ultimately, the House of Representatives decided in Jefferson’s favor for the presidency. The Twelfth Amendment, however, stipulates that electors still casting two votes will specify one candidate for president and one candidate for vice president. Finally,
the Twenty-Third Amendment, ratified in 1961, granted three electoral votes to Washington, D.C.

Why do we have an Electoral College in the first place?

The system of each state appointing electors to elect the president was, for the Framers, the most workable solution to a very tricky problem. Just how do we elect a president in a new nation
comprised of 13 large and small states, with 13 perspectives about states’ rights and governmental powers? Delegates at the Constitutional Convention in 1787 considered several possible methods
of selecting a president. One idea was to have Congress choose the president. This idea was rejected because of fears of division and corruption in Congress, as well as fear of upsetting the balance of power among the three branches of government. A second idea was to have state legislatures select the president. This idea was also rejected out of fear that a president would be beholden to the state legislatures, thereby eroding federal authority. The third idea—presidential election by direct popular
vote—also posed concerns because, without sufficient information about candidates from outside their state, people might only vote for candidates from their own states or region, and no candidate would emerge with a majority vote, or the largest and most populous states would control elections.

Finally, delegates assigned to the Committee of Eleven at the Convention proposed an indirect election system aligned with the already approved system of apportioning representation among the states in Congress. The Constitutional Convention approved the Committee’s Electoral College proposal on September 6, 1787.

Do the electors meet?

The members of the Electoral College never meet as one group. The Constitution mandates, however, that they meet in their respective states and Washington, D.C., on the same day—the first Monday after the second Wednesday in December in all years divisible by four, or presidential election years. State legislatures may determine the location of the meeting, and if it is open to the public.

Procedures in each state vary slightly, but, typically, the meeting is called to order by the election certification official, often each state’s secretary of state or equivalent officer. The official reads aloud the state’s Certificate of Ascertainment, a document provided by the governor of each state to the
Congress that lists the names of the electors chosen by the voters—typically tied to the political party of the presidential candidate who won the popular vote—and the number of votes received, as well as all other candidates for elector and the numbers of votes received. Electors cast votes in writing for president and vice president and sign the state’s Certificate of Vote, a document noting all persons receiving votes for president and vice president. The Certificates of Ascertainment and the Certificates of Vote are then mailed to Congress.

Must electors vote for the candidate that received the most popular votes in their state?

No. There is no constitutional provision or federal law that requires electors to vote according to the results of the popular vote in their states. Some states, however, may require electors to pledge their votes to the winner of the popular vote in the state, and 24 states have laws providing that so-called “faithless actors” may be subject to fines or replaced by a substitute elector. To date, no elector has ever been penalized for casting a faithless vote, so the U.S. Supreme Court has never ruled on the constitutionality of such laws.

The Supreme Court has ruled, however, on the constitutionality of pledge laws. The decision in Ray v. Blair (1952) was that it is constitutional for a state to require electors to pledge votes before actually voting because electors are actors of their respective state, not the federal government, and thereby
governed by the state. The case officially defined electors as representatives of their respective states even though they are performing a federal function in assisting with a national election.          

Electors are required by the Twelfth Amendment, however, to cast at least one vote, for either president or vice president, for a candidate not from their home state. This prevents electors from voting only for “favorite sons or daughters.” For this reason, political parties tend not to nominate candidates and running mates from the same state.

If the electors never actually meet together, how do we know who wins the election?

The Twelfth Amendment mandates that the Congress assemble in joint session to count the electoral votes and declare the winners of the election. After all of the Certificates are received from the states and the District of Columbia, they are arranged—unopened—in alphabetical order. The Senate and the House of Representatives each appoint two tellers, who open and read aloud the Certificates for each state, in alphabetical order.

Members of Congress can object to any state’s vote count provided that the objection is presented in writing and signed by at least one member of each house of Congress. A state’s Certificate of Vote may be rejected only if both houses of Congress vote to accept the objection. If this happens, the votes from the state are simply ignored. Never in our nation’s history, however, has Congress voted to reject a state’s Certificate of Vote.

After the Certificates from all states are read and the votes counted, the presiding officer announces the final result of the vote and, as long as the required majority of votes is achieved, declares the names
of the candidates elected president and vice president. If the requisite majority was not achieved, then the House of Representatives is required to vote to determine the winning candidates. The House of Representatives has selected the president only twice—in 1801 to break a tie in votes and in 1825 because no candidate secured a majority of electoral votes.

How do states select electors?

The U.S. Constitution allows each state to decide how to select its respective electors. Initially, some state legislatures appointed electors. Other states selected electors through direct popular vote, either by congressional district, or at large throughout the whole state. By 1860, all states had moved to choosing their electors by a direct statewide popular vote. Today, all states choose their electors by direct statewide election, except for Maine and Nebraska which (in 1969 and 1991
respectively) changed to selecting two electors by a statewide popular vote
and the remainder by the popular vote in each congressional district.

How does the “winner-take-all” system fit into this?

Along with the trend toward direct statewide election of electors came the trend toward the “winner-take-all” system of choosing electors. Under this system, the presidential and vice presidential candidates who win the most popular votes within a state win all of that state’s electors.

Critics of the winner-take-all system suggest the smaller states possess an influence on the electoral outcome disproportionate to their populations, compared to larger states. They also suggest that it disenfranchises voters who select electors for candidates who do not win the popular vote within the
state.

Today, only Maine and Nebraska are not winner-take-all states. This means that if Candidate A received 60 percent of the popular vote, then he or she would receive 60 percent of the state’s electoral votes. Candidate B would receive the remaining 40 percent. Colorado proposed a similar plan for proportional distribution of votes in 2004, but it was defeated when placed on the ballot.

Have political parties influenced this process?

Political parties do benefit from the winner-take-all system, as it becomes easier for candidates from one party to win the requisite Electoral College majority. Political parties have most directly influenced the process through selection of electors within a state. Prior to the development of political parties,
states selected one slate of electors. It became customary for each political party to offer a “slate of electors,” a list of individuals loyal to their candidates for president and vice president and equal in number to that state’s electoral vote. Today, each state has several slates of electors, one for each recognized political party whose presidential and vice presidential candidates appears on
the ballot.

Some people propose abolishing the Electoral College. Why?

Critics of the Electoral College system suggest that it is anachronistic, left from a time when people were not able to learn about all of the candidates. This simply is not a problem in our wired world. Critics suggest that the system makes the national popular vote irrelevant, even disenfranchising
individual voters, as their votes are not actually representative of one vote per person for president and vice president, but votes for electors.

The winner-take-all system is also criticized for allowing candidates to focus on states with large numbers of electoral votes, or “swing” states whose electoral votes may not be cast for a clear favorite. Other critics suggest the Electoral College system is unnecessarily complex and contributes to low voter
turnout or voter apathy. In our nation’s history, there have been over 700 proposals in Congress to reform or abolish the Electoral College, more than any other subject of constitutional
reform. Only two—the Twelfth and Twenty-Third Amendments—ever reached the stage of ratification.

What do supporters of the Electoral College say?

Supporters of the Electoral College argue that the system prevents a candidate from winning the presidency by simply winning popular votes in large urban areas, and maintains the federal character of our polity, a system of shared federal and state powers. In order to win, candidates must expand their campaigns to include smaller states and rural areas. The Electoral College also allows for states to conduct elections using methods it chooses without affecting other states. Likewise, it also isolates the impact of problems such as election fraud and ballot recounts.

Supporters argue that a direct popular vote for president would result in comprehensive federal voting statutes that would take power away from the states. Supporters also suggest that the Electoral
College model neutralizes voter turnout disparities among states. Things like weather, high profile campaigns, initiatives, and constitutional amendments at the state level affect voter turnout. Because the allocation of electoral votes is independent of each state’s voter turnout, the Electoral College helps to neutralize disparities between states.

Are there any current proposals to reform the Electoral College?

One of the most prominent proposals to reform the Electoral College is the National Popular Vote Interstate Compact, in which individual states agree to allocate their electoral votes to the winner of the national popular vote. State legislatures of the joining states would organize direct elections, effectively circumventing the Electoral College. Eight states—California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington—and the District of Columbia have joined the compact. Together they possess 132 electoral votes, or 49 percent of the 270 needed to enact the compact.