Electoral College

I

Introduction

Electoral College, the institution through which Americans elect the president and vice president of the United States. Many American voters are unaware of the electoral college’s role, in part because they mistakenly believe that they directly elect the president and vice president. In fact, when they cast their ballots for president and vice president, they are voting for officials called electors who are assigned to each presidential candidate.

Each state is allotted a number of electors equal to the number of its representatives and senators in the U.S. Congress. In addition, the 23rd Amendment to the Constitution of the United States, adopted in 1961, permits residents of the District of Columbia to vote for three electors in the same manner as residents of the states. Through its power of apportioning representatives among the states, Congress determines the number of presidential electors to which each state is entitled. At the present time the total of state and District of Columbia electors is 538; a simple majority of 270 is necessary for election to the presidency.

The electors have only one responsibility: to select the president and vice president. Each presidential candidate has a slate of electors assigned to that candidate. When the candidate wins the popular vote in a state or the District of Columbia, the electors assigned to that candidate are the ones who vote in the electoral college. To do so, they meet in their respective states or the District of Columbia about five weeks after the November presidential election to cast their votes. Normally, the meeting is a mere formality. The electors vote for the presidential candidate who received the greatest number of votes in their state. The electoral college simply ratifies the results of the popular vote.

In most cases the candidate who wins the popular vote also wins the electoral college vote. If the election is close, however, as was the election of 2000, the electoral college may end up picking a candidate who did not receive most of the popular vote. The candidate who wins the presidency is the one who wins a majority of the electoral college votes, rather than a majority of the popular vote. On four occasions in U.S. history—in 1824, 1876, 1888, and 2000—the candidate with the most popular votes did not win the presidency because he did not win the most electoral college votes. This is because Americans do not directly elect their president and vice president. If Americans directly elected their president, then the candidate with the most votes would automatically win.

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II

How the Electoral College Works

A

Methods of Selection

The U.S. Constitution sets forth only one requirement for serving as an elector. In Article II, Section 1, it provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” No clear definition exists for the meaning of “office of trust or profit,” but it is generally taken to mean that members of the Cabinet or other high-ranking executive branch members cannot serve as electors. (However, in the election of 1876, an elector from Oregon was challenged on the grounds that he was a postmaster.) States have developed several different procedures for selecting electors. The most prominent method is the state party convention. Currently, 37 states nominate electors at their state party conventions. In 11 states and the District of Columbia, the state party’s central committee makes the selection. Two other states leave the decision to the state parties to choose a method of selection.

The persons chosen at this stage are not yet actual electors. They must be formally appointed. All state legislatures have by law conferred upon the citizens of the state the right to choose electors in the November election. As of 2000, the District of Columbia and all states except Maine and Nebraska had adopted the winner-take-all system. Under the winner-take-all system, the electors assigned to the candidate who won most of the vote in their state are all represented in the electoral college. Maine and Nebraska, however, employ the district system. Under this system, two electors are awarded to the winner of the statewide popular vote, and the remaining electors are awarded to the popular vote winner in each of the state’s congressional districts.

Only a handful of states print the names of candidates for elector on the ballot. In the vast majority of states, when the voter votes for a party’s candidates for president and vice president, the voter is simply assumed to have voted for the party’s candidates for elector.

B

Counting the Votes

The electors meet, according to federal law, on the first Monday after the second Wednesday in December in a presidential election year. The Constitution requires that they meet “in their respective states” all across the country. Strictly speaking, therefore, there is no “college” of electors because they never convene jointly in a single national assembly. Most states provide by law that their electors meet in the state capital. Typically, these meetings are ceremonial; no debates occur, for there is nothing to debate.

In about half the states, electors are formally “pledged”—that is, they are legally committed to vote for the candidate of the party with which they are affiliated. In the remaining states, electors are “unpledged,” meaning that no explicit legal requirement exists to vote for the affiliated candidate. Still, even unpledged electors could face legal difficulties if they “faithlessly” voted for a candidate other than the one associated with their slate of electors. This is because the people of the state voted for that slate of electors with the reasonable expectation that those electors would loyally reflect the peoples’ choice. In fact, the problem of “faithless electors” has been more theoretical than real. About 20,000 electors voted in all presidential elections from 1789 to 2000, and fewer than a dozen voted faithlessly. The outcome of an election has never been changed by faithless electors—nevertheless, it could happen.

Each elector is required by federal law to sign and seal six copies of a certificate listing the elector’s choice for president and vice president. One copy is sent to the president of the United States Senate—that is, the incumbent vice president of the United States—who announces the results when the electoral votes are counted in Washington, D.C., on January 6 (or January 7 if the 6th falls on a Sunday). The vote count is done in a joint session of Congress that meets in the chamber of the House of Representatives. The incumbent vice president presides. The actual counting is done by members of Congress appointed to do the vote count. For this occasion they are called tellers. After the results are announced, any member may object to the counting of any electoral vote from any state (on the ground that it was not “regularly given”—a term federal law does not define). To sustain the objection, both houses of Congress must agree, each by a majority vote, that the vote should not be counted. This has happened several times. After the elections of 1820 and 1832 Congress rejected votes on technical grounds. Some votes cast in 1872 were rejected because they had been cast for a deceased candidate (Horace Greeley). A vote in the election of 1880 was rejected because it had been made on the wrong day.

If no candidate receives a majority of the electoral votes, the Constitution requires that the U.S. president be chosen by the House of Representatives. The 12th Amendment to the Constitution requires that the House “immediately” choose the president “by ballot” from among the presidential candidates receiving the highest number of votes in the electoral college. If there are more than two candidates receiving electoral college votes, then the House chooses from the three candidates who received the most votes. In the House election each state has one vote. Representatives from each state vote to decide which candidate will carry the state. The votes are taken state-by-state in alphabetical order. A majority of all the states, or 26 votes, is necessary to win.

III

History of the Electoral College

A

Origins

One thing is clear about the political theory underpinning the electoral college: The framers of the Constitution could not agree on one. From the outset, the framers were uncertain about how the president should be chosen. Meeting in the Constitutional Convention in Philadelphia, Pennsylvania, in 1787, the framers originally decided to have Congress choose the president, and that there should be no popular vote to elect the president. Then the Constitutional Convention decided that the president should be chosen by electors. Later consideration restored the choice to Congress. Toward the close of the convention, a committee came up with the main outlines of the procedure used to this day, selection by electors.

The framers’ uncertainty was generated by disagreement over the role of the people, the Congress, and the states in the political process. Many delegates to the convention, including Virginia’s James Madison, favored popular election of the president. But others, such as Massachusetts’s Elbridge Gerry, feared the “ignorance of the people.” Virginia’s George Mason thought that to refer the choice of president to the people would be to “refer a trial of colors to a blind man.” These doubts about the people’s ability to choose a president led to misgivings about the competence of the proposed electoral college. Some delegates therefore preferred that Congress select the president. South Carolina’s Charles Pinckney argued that because members of Congress would be “immediately interested in the laws made by themselves,” they would be likely to select a “fit man to carry them properly into execution.” Connecticut’s Roger Sherman also favored letting Congress choose so as to make the president “absolutely dependent on that body.”

But most of the delegates in Philadelphia opposed congressional selection. Gerry argued that there would be “constant intrigue kept up for the appointment.” Pennsylvania’s Robert Morris argued that the president should not be the “mere creature of the Legislature.” Madison, too, believed that congressional selection would leave the chief executive “under the influence of an improper obligation” to the Congress. Unable to agree on either selection by Congress or selection by the people, some other alternative was required. The framers thus settled on the electoral college.

This choice represented a compromise. The losers—at least in the first stage of the new electoral structure—were the proponents of popular sovereignty (the doctrine that the people determine directly how they are ruled and that government is subject to the will of the people). Electors would be chosen by the state legislatures with no reference to popular preference. If the electoral college were to deadlock, however, the election would be decided by the House of Representatives. There, state sovereignty would prevail, because each state delegation would have one vote, regardless of the size of the state’s population.

One other compromise was reached that bore upon the size of a state’s number of electors—the infamous “three-fifths” clause. A slave, it was agreed, was to count as three-fifths of a person for purposes of determining a state’s population, and thus the number of its representatives in Congress and the number of its electors to the electoral college.

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