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When Americans vote for President and Vice President of the United States, they are actually voting for presidential electors, known collectively as the Electoral College. It is these electors, chosen by the people, who elect the chief executive. The Constitution assigns each state a number of electors equal to the combined total of the state’s Senate and House of Representatives delegations; at present, the number of electors per state ranges from three (District of Columbia) to 55 (California), for a total of 538. To be elected President of the United States, a candidate needs a majority of 270 electoral votes.
How the Electoral College Works
Aside from Members of Congress and people holding offices of “Trust or Profit” under the Constitution, anyone may serve as an elector.
In each presidential election year, a group of candidates for elector is nominated by political parties and other groupings in each state, usually at a state party convention or by the party state committee. It is these elector-candidates, rather than the presidential and vice presidential nominees, for whom the people vote in the November election, which is held on Tuesday after the first Monday in November. In most states, voters cast a single vote for the slate of electors pledged to the party presidential and vice presidential candidates of their choice. The slate winning the most popular votes is elected. This is known as the winner take all system, or general ticket system.
Electors assemble in their respective states on Monday after the second Wednesday in December. They are pledged and expected, but not required, to vote for the candidates they represent. Separate ballots are cast for President and Vice President, after which the Electoral College ceases to exist for another four years. The electoral vote results are counted and certified by a joint session of Congress, held on January 6 of the year succeeding the election. A majority of electoral votes (currently 270 of 538) is required to win. If no candidate receives a majority, then the President is elected by the House of Representatives and the Vice President is elected by the Senate, a process known as contingent election.
READ MORE: What Happens If There's a Tie in a US Presidential Election?
The Electoral College in the U.S. Constitution
The original purpose of the Electoral College was to reconcile differing state and federal interests, provide a degree of popular participation in the election, give the less populous states some additional leverage in the process by providing “senatorial” electors, preserve the presidency as independent of Congress and generally insulate the election process from political manipulation.
The Constitutional Convention of 1787 considered several methods of electing the President, including selection by Congress, by the governors of the states, by the state legislatures, by a special group of Members of Congress chosen by lot and by direct popular election. Late in the convention, the matter was referred to the Committee of Eleven on Postponed Matters, which devised the Electoral College system in its original form. This plan, which met with widespread approval by the delegates, was incorporated into the final document with only minor changes.
The Constitution gave each state a number of electors equal to the combined total of its membership in the Senate (two to each state, the “senatorial” electors) and its delegation in the House of Representatives (currently ranging from one to 52 Members). The electors are chosen by the states “in such Manner as the Legislature thereof may direct” (U.S. Constitution, Article II, section 1).
Qualifications for the office are broad: the only people prohibited from serving as electors are Senators, Representatives and people “holding an Office of Trust or Profit under the United States.”
In order to forestall partisan intrigue and manipulation, the electors assemble in their respective states and cast their ballots as state units, rather than meet at a central location. At least one of the candidates for whom the electors vote must be an inhabitant of another state. A majority of electoral votes is necessary to elect, a requirement intended to insure broad acceptance of a winning candidate, while election by the House was provided as a default method in the event of Electoral College deadlock. Finally, Congress was empowered to set nationwide dates for choice and meeting of electors.
All the foregoing structural elements of the Electoral College system remain in effect currently. The original method of electing the President and Vice President, however, proved unworkable, and was replaced by the 12th Amendment, ratified in 1804. Under the original system, each elector cast two votes for President (for different candidates), and no vote for Vice President. The votes were counted and the candidate receiving the most votes, provided it was a majority of the number of electors, was elected President, and the runner-up became Vice President. The 12th Amendment replaced this system with separate ballots for President and Vice President, with electors casting a single vote for each office.
READ MORE: Why Was the Electoral College Created?
The Electoral College Today
Notwithstanding the founders’ efforts, the Electoral College system almost never functioned as they intended, but, as with so many constitutional provisions, the document prescribed only the system’s basic elements, leaving ample room for development. As the republic evolved, so did the Electoral College system, and, by the late 19th century, the following range of constitutional, legal and political elements were in place on both a state and federal level:
Allocation of Electors and Electoral Votes
The Constitution gives each state a number of electors equal to the combined total of its Senate membership (two for each state) and House of Representatives delegation (currently ranging from one to 55, depending on population). The 23rd Amendment provides an additional three electors to the District of Columbia. The number of electoral votes per state thus currently ranges from three (for seven states and D.C.) to 55 for California, the most populous state.
The total number of electors each state gets are adjusted following each decennial census in a process called reapportionment, which reallocates the number of Members of the House of Representatives to reflect changing rates of population growth (or decline) among the states. Thus, a state may gain or lose electors following reapportionment, but it always retains its two “senatorial” electors, and at least one more reflecting its House delegation.Popular Election of Electors
Popular Election of Electors
Today, all presidential electors are chosen by voters, but in the early republic, more than half the states chose electors in their legislatures, thus eliminating any direct involvement by the voting public in the election. This practice changed rapidly after the turn of the nineteenth century, however, as the right to vote was extended to an ever-wider segment of the population. As the electorate continued to expand, so did the number of persons able to vote for presidential electors: Its present limit is all eligible citizens age 18 or older. The tradition that the voters choose the presidential electors thus became an early and permanent feature of the Electoral College system, and, while it should be noted that states still theoretically retain the constitutional right to choose some other method, this is extremely unlikely.
READ MORE: How Are Electoral College Electors Chosen?
The existence of the presidential electors and the duties of the Electoral College are so little noted in contemporary society that most American voters believe that they are voting directly for a President and Vice President on Election Day. Although candidates for elector may be well-known persons, such as governors, state legislators or other state and local officials, they generally do not receive public recognition as electors. In fact, in most states, the names of individual electors do not appear anywhere on the ballot; instead, only those of the various candidates for President and Vice President appear, usually prefaced by the words “electors for.” Moreover, electoral votes are commonly referred to as having “been awarded” to the winning candidate, as if no human beings were involved in the process.
The Electors: Ratifying the Voter’s Choice
Presidential electors in contemporary elections are expected, and in many cases pledged, to vote for the candidates of the party that nominated them. While there is evidence that the founders assumed the electors would be independent actors, weighing the merits of competing presidential candidates, they have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the presidential and vice presidential candidates of the party that nominated them.
Notwithstanding this expectation, individual electors have sometimes not honored their commitment, voting for a different candidate or candidates than the ones to whom they were pledged. They are known as “faithless” or “unfaithful” electors. In fact, the balance of opinion by constitutional scholars is that, once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have, however, been few in number (in the 20th century, there was one each in 1948, 1956, 1960, 1968, 1972, 1976, 1988, and 2000), and have never influenced the outcome of a presidential election.
How the Electoral College Works in Each State
Nomination of elector-candidates is another of the many aspects of this system left to state and political party preferences. Most states prescribe one of two methods: 34 states require that candidates for the office of presidential elector be nominated by state party conventions, while a further ten mandate nomination by the state party’s central committee. The remaining states use a variety of methods, including nomination by the governor (on recommendation of party committees), by primary election, and by the party’s presidential nominee.
Joint Tickets: One Vote for President and Vice President
General election ballots, which are regulated by state election laws and authorities, offer voters joint candidacies for President and Vice President for each political party or other group. Thus, voters cast a single vote for electors pledged to the joint ticket of the party they represent. They cannot effectively vote for a president from one party and a vice president from another, unless their state provides for write-in votes.
General Election Day
Elections for all federal elected officials are held on the Tuesday after the first Monday in November in even-numbered years and presidential elections are held in every year divisible by four. Congress selected this day in 1845; previously, states held elections on different days between September and November, a practice that sometimes led to multiple voting across state lines and other fraudulent practices. By tradition, November was chosen because the harvest was in and farmers were able to take the time needed to vote. Tuesday was selected because it gave a full day’s travel between Sunday, which was widely observed as a strict day of rest, and Election Day. Travel was also easier throughout the north during November, before winter had set in.
The Electors Convene
The 12th Amendment requires electors to meet “in their respective states…” This provision was intended to deter manipulation of the election by having the state electoral colleges meet simultaneously, but keeping them separate. Congress sets the date on which the electors meet, currently the first Monday after the second Wednesday in December. The electors almost always meet in the state capital, usually in the capitol building or state house itself. They vote “by ballot” separately for President and Vice President (at least one of the candidates must be from another state). The results are then endorsed, and copies are sent to the Vice President (in his capacity as President of the Senate); the secretary of state of their state; the Archivist of the United States; and the judge of the federal district court of the district in which the electors met. Having performed their constitutional duty, the electors adjourn, and the Electoral College ceases to exist until the next presidential election.
Congress Counts and Certifies the Vote
The final step in the presidential election process (aside from the presidential inaugural on January 20) is the counting and certification of the electoral votes by Congress. The House of Representatives and Senate meet in joint session in the House chamber on January 6 of the year following the presidential election at 1:00 pm. The Vice President, who presides in his capacity as President of the Senate, opens the electoral vote certificates from each state in alphabetical order. He then passes the certificates to four tellers (vote counters), two appointed by each house, who announce the results. The votes are then counted and the results are announced by the Vice President. The candidate who receives a majority of electoral votes (currently 270 of 538) is declared the winner by the Vice President, an action that constitutes “a sufficient declaration of the persons, if any, elected President and Vice President of the States.”
READ MORE: Presidential Election Facts
The Good, the Bad, and the Ugly about The Electoral College
A history professor shares his insights on the governmental institution that has increasingly become the deciding factor in American presidential races.
The 2020 presidential election is fast approaching, which means it’s the perfect time for a refresher on the governmental institution that has increasingly become the deciding factor in American presidential races: the Electoral College. We asked Chris DeRosa, Ph.D., chair of the Department of History and Anthropology, to share his insights on the institution.
The original plan called for each elector to cast two votes for president. Whoever received a majority of votes from electors became president the runner-up became vice president.
States can do what they want with their electoral votes, says DeRosa. Most give them to the candidate who wins a state majority. An elector who defies that assignment is called a faithless elector, and the state has the choice whether to tolerate them. “You don’t get them very often because they’re chosen as party loyalists, and we’ve never had faithless electors swing an election,” says DeRosa.
One of the advantages is the end result is clear: “Somebody wins somebody gets a majority of the electoral votes,” says DeRosa. If presidents were elected purely by popular vote, a candidate could win the presidency with less than 50% of the vote. “If you had more than two parties contending for the presidency, you might have somebody winning with 30% of the votes, and that’s a ticket to an extremist candidate.”
The first problem with the Electoral College is that it gives more weight to voters in small states than those in more populous ones, says DeRosa. Every state gets a minimum of three electoral votes. However, each state’s total allotment is based on its representation in the Senate (always two people) and the House (varies by population). “So take Washington, D.C., as an example,” says DeRosa. “More people live in D.C. than in Wyoming, the least populous state in the union but they both get three electoral votes.” (Plus, unlike Wyoming, D.C. gets no voting representation in Congress.)
The biggest problem with the Electoral College is that it encourages vote suppression, says DeRosa. Southern states always had an advantage in the population count, because they got electoral votes appointed on the basis of their slave populations and their white populations. That gave the states extra representation for people they weren’t really representing at all.
After the Civil War, former slaves were counted as “whole” persons, not three-fifths of one, for purposes of electoral vote allotment. But Black voter suppression still took place through Jim Crow laws. This further “inflated the electoral count of people who were not representing all the people in their state,” says DeRosa. “So the Electoral College became a pillar of white supremacy.”
Love it or hate it, the Electoral College is here to stay because changing it would require “constitutional surgery,” says DeRosa. “You would need three-fourths of the states to ratify any change, and too many states that are intent on suppressing votes benefit from the Electoral College.” The downside? “If you never have to appeal to the electorate because you’re successfully suppressing some large part of it, then you have a broken system.”
How the Electoral College Became Winner-Take-All
The election of 1824 is most famous for the "corrupt bargain," a deal in the House of Representatives that gave John Quincy Adams the presidency despite his winning fewer popular and electoral votes than Andrew Jackson. But 1824 was also significant for another reason: it was the first election in which the majority of states used a statewide winner-take-all voting method for choosing their presidential electors.
It is a system that now seems like a fundamental part of the American democracy. Presidential candidates compete to win states, which is how they get votes in the Electoral College. The U.S. Constitution does not mandate that system, however. Instead, it is left up to the states to determine how they select their representatives in the Electoral College. For the first 13 presidential elections, spanning the first four decades of the history of the United States, states experimented with many different electoral systems.
The shift to statewide winner-take-all was not done for idealistic reasons. Rather, it was the product of partisan pragmatism, as state leaders wanted to maximize support for their preferred candidate. Once some states made this calculation, others had to follow, to avoid hurting their side. James Madison's 1823 letter to George Hay, described in my earlier post, explains that few of the constitutional framers anticipated electors being chosen based on winner-take-all rules.
The graph below charts the use of each major method of choosing presidential electors during this formative period. An explanation of each system and a timeline of important developments in presidential elections follows.
At first, state legislatures dominated as the electoral method of choice. Between 1804 and 1820, both statewide and state legislature systems were commonly used, with a small but steady number of states using district-based methods. After 1824, states quickly began conforming to the norm of statewide selection of electors. (Data from pg. 18 of of Delaware's 1966 lawsuit challenging the constitutionality of the "state unit-vote" system.)
Methods of Choosing Electors:
State Legislature: The legislature of each state chose the presidential electors of the state, giving the people at large no direct vote in presidential elections.
Districts: States were divided into districts, either using pre-existing congressional districts or creating new districts specifically for the presidential election. Voters elected one or multiple electors from their district.
Statewide: The current most common system--voters in a state vote for candidates, and all of that state's electoral votes are cast by electors nominated by the candidate with the most statewide votes.
Hybrid: Some states used a combination of these methods, allocating some electors through the state legislature, some from districts, and/or some from a statewide general ticket. Nebraska and Maine currently use a hybrid of the district and statewide methods.
Other: Various alternate systems were experimented with, including electors from each county choosing the state's electors and runoff elections.
1789: George Washington is the overwhelmingly popular choice to become the first president just three states allocate electors based on the winner of the statewide popular vote.
1792: State legislatures emerge as the preferred method of selecting presidential electors. George Mason of Virginia defended this method at the Constitutional Convention by arguing that "It would be as unnatural to refer the choice of a proper character for a chief Magistrate to the people, as it would to refer a trial of colors to a blind man."
1800: Virginia, the state with the most electoral votes, switches to a statewide popular vote system. Winning candidate Thomas Jefferson said of the switch in his home state: "All agree that an election by districts would be best, if it could be general but while 10 states choose either by their legislatures or by a general ticket, it is folly & worse than folly for the other 6 not to do it." Indeed, Jefferson would have won the 1796 election if two of his strongholds had used winner-take-all. Not wanting to lose an advantage to Virginia, Massachusetts switches to a state legislature system in response, to ensure that all its electoral votes would go to John Adams.
1804: The 12 th amendment is ratified, requiring electors to cast a single vote for a presidential ticket rather than casting two votes for their two preferred candidates, with the top finisher becoming president and the runner-up becoming vice-president. The number of states using statewide and state legislature systems is equal for the first time.
1812: The number of states using statewide models decreases and the number using state legislature systems increases, suggesting that the latter might ultimately win out. A substantial number of states continue to use a district-based model.
1820: An equal number of states use statewide and state legislature methods for the second time. This is the last election in which state legislatures played a dominant role. By this point, political parties have become entrenched and the electors of the Electoral College can no longer realistically claim to be independent. After the election, James Madison proposes a constitutional amendment that would require states to use the district method, writing that "The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted & was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which had set the example."
1824: The tipping point election for presidential electoral systems, as twice as many states used the winner-take-all statewide method as used the state legislature method. The defeated Andrew Jackson joined James Madison's pleas for a constitutional amendment requiring a uniform district election system, but to no avail. In every U.S. presidential election since, the statewide method has been predominant.
1836: All but one state, South Carolina, uses the winner-take-all method based on the statewide popular vote to choose its electors. South Carolina continues to have its legislature choose electors until after the Civil War.
1872: For the first time, every state holds a popular vote election for president, and all use the statewide winner-take-all rule. In 1876, Colorado is the last state to have its legislature choose its electors.
The racial history of the Electoral College — and why efforts to change it have stalled
AKRON, Ohio — Rep. Emilia Sykes is mad about the country’s presidential election system and wants to change it. But on Friday, her focus turned elsewhere: to the 10,000 students whose school just shut down.
Within months of Trump winning the presidential election in 2016, despite failing to capture the majority of votes, lawmakers such as Sykes in Ohio as well as Florida, Georgia, South Carolina, Texas and at least a dozen other states supported bills to transform the process. If enacted by enough states to influence the majority, they would agree to give all their electoral votes to the most popular presidential candidate, regardless of who wins their state.
Ten states and Washington, D.C., have already agreed to join the compact.
But in Ohio’s two-thirds Republican legislature, the effort languished and the impetus started to fade. Lawmakers in other states, too, abandoned their fights. Attempts to change the Electoral College system that were once seen as bipartisan fell victim to the same kind of divide that fueled this weekend’s federal government shutdown.
“The idea was to pitch this as something that was of interest to Democrats and Republicans alike,” said Joshua Tucker, a professor of politics at New York University. “Now it’s seen as a way of undermining the Republican party.”
A Gallup poll after the election showed that Republicans who favored a national popular vote dipped from 54 percent in 2011 to 19 percent in December 2016.
For Sykes, who represents her hometown city of Akron, changing the system has less to do with partisanship than with recognizing a history that still resonates today. The Electoral College was built in part to accommodate white, male slave owners who could not have anticipated a two-party system, that slaves would be freed or that black people and women would be able to vote.
And Ohio is not only a battleground state with a legacy of forecasting each election, it’s also one of the only states where black legislators are at the forefront of challenging the Electoral College over racial underrepresentation.
“It dilutes our power,” she said. “And we recognize that and we get it and we don’t want it. We want our power to be used to its fullest potential.”
Ohio is among 48 states that have for most of the country’s history pledged all of their Electoral College votes to the party that wins the majority in the state, no matter how close the race.
And since black people, who are among the most fervent voter base for the Democratic party, are often scattered throughout red states, a reformation could signal to them that their ballots are as valuable and powerful as white people’s, she said.
Still, even devotees like her are struggling to keep up the fight. On Friday, for instance, the free, online charter school Electronic Classroom of Tomorrow for young adults, was shut down halfway through the academic year.
“Thousands of students have to figure out where they’re going to go to school on Monday,” Sykes said. “That takes priority over the Electoral College, although it’s equally as important.”
The Federal Convention convened in the State House (Independence Hall) in Philadelphia on May 14, 1787, to revise the Articles of Confederation. Photo by Library of Congress
‘At the present period, the evil is at its maximum’
When the framers met for the Constitutional Convention in Philadelphia in 1787, they aimed to unify the colonies with a government that gave fair representation to all states, no matter their size.
They were deciding whether slaves in Southern states should be considered property –to abscond population taxes — or people, so those states could have more representation in government.
Slaves were the economic heart and pulse of the country and the Northern states, even if they did not engage in slavery, benefited from their labor. So even though slaves were unable to vote, the Convention decided that slaves should be counted as three-fifths of a white person for the purposes of representation in Congress.
Considering options for electing the president, James Madison, now known as the “Father of the Constitution” and a slave-owner in Virginia, said the “right of suffrage was much more diffusive in the Northern than the Southern States and the latter could have no influence in the election on the score of Negroes.”
With that, Madison had proposed the prototype for the same Electoral College system the country uses today: instead of a direct vote, each state was to choose electors, roughly based off their population, but weighted by slaves.
The Convention decided the electors would convene, exchange ideas and cast their votes to reflect their own ideals on the state’s behalf. Though the framers could not foresee that by 1800, Thomas Jefferson, whose state of Virginia was the largest because of its 40 percent slave population, would beat out John Adams, who was opposed to slavery.
Jefferson also convinced his state to give him all its electoral votes if he won the majority of its ballots. Then, Jefferson signed Ohio as a state, which also gave all its electors to the most popular candidate instead of dividing them among the parties, and the Federalist party engaged in the same tactic.
By 1823, Madison had profound distaste for this winner-take-all approach. “At the present period, the evil is at its maximum,” he wrote, and called for an amendment to abandon it, but that never happened.
It took nearly 100 years after the Convention to abolish slavery with the 13th Amendment in 1865. Later came women’s suffrage in 1920, and then the prohibition of discriminatory voter registration requirements with the Civil Rights Act of 1964. By then, more than 80 percent of black voters across the country had started to favor the Democratic candidate in presidential elections.
But more than half of the country’s black population, about 23 million and growing, lives in the South, which is encompassed by Washington, D.C., and 15 states that stretch from Texas to Delaware, according to the 2010 U.S. Census. The Republican party won 12 of those states, and their combined 162 electoral votes, through states’ winner-take-all approach to the Electoral College system in 2016.
The Democratic party won three states — Delaware, Maryland and Virginia — as well as D.C. for a combined total of 29 electoral votes.
“[We have] an electoral college that says to this entire voting block of people, ‘You all are voting in high numbers, high turnout across the board, across the country. But in the end, that does not matter because we’ll have this elector, maybe they’ll do what you’ve done, maybe they won’t,’” Sykes said.
While many experts say the system was designed to give states autonomy and also avoid tyranny or a demagogue, this last election has some critics revisiting that idea.
‘They didn’t think about racial minorities’
From his top floor office in the College of Arts and Science building at the University of Akron, Dean John Green said that more than 200 years ago, the framers could not have comprehended an election like Trump’s.
“One of the things they were trying to get at with this elaborate machinery, including the Electoral College, was a way to protect minorities,” Green said. “They didn’t think about racial minorities … Now, there’s a danger of a white tyranny.”
It’s unclear how much isolating minorities played an explicit role in Trump’s strategy, Matt Borges, the former head of Ohio’s Republican Party said, but regardless, the campaign “further polarized us, pushed us away from really ever being able to make inroads with [people of color] and it was oddly appealing in a way to a block of voters.”
Trump’s win marked the second Republican candidate this century to earn the college for their first term without having won the popular vote and the fifth time in history that the president did not secure the majority of votes. His Democratic rival Hillary Clinton gained nearly 2.9 million more votes. And President George W. Bush was elected in 2000 with about 540,000 fewer votes than his opponent, Al Gore.
Now, Tucker of New York University says it is too hard to ignore that there might be built in advantages for the Republican party, yet anyone who challenges it bears the label of either being a sore, Democratic loser or seeking only to undermine Trump.
One month after Trump’s inauguration, Rep. Dan Ramos (D-OH) and Rep. David Leland (D-OH) introduced House Bill 25, which remains in a pile of 462 bills for the two-year General Assembly session.
Ohio Rep. Louis Blessing chairing the House of Representatives Government Oversight Committee. Photo by Kamala Kelkar
The House has a policy to give all bills at least one hearing by the end of the session, though Rep. Louis Blessing (R-OH) predicted that since there is a lack of support and that there are other imminent proposals, “it will probably get its first and most likely only hearing in November or December.”
“Horses only” sign in Holmes County, Ohio. Photo by Kamala Kelkar
It benefits people like Robin Hovis, who is the head of the Holmes County Republicans. Hovin is a financial advisor who lives across the street from his office in a downtown area amid the rolling hills and narrow roads of Amish Country, where parking lots include spots for horse-drawn carriages. About 43,000 people live here, 99 percent of whom are white. About 70 percent of the ballots cast during the 2016 election in this county were for Trump.
“We would lose our voice entirely with a popular vote,” Hovis said. In the last election, “Those of us in the flyover area were actually listened to,” he said.
Hovis said people saw Trump as a businessman who “called a spade a spade,” and that he did not think the GOP engaged in a racially charged campaign.
He acknowledged that most of Trump’s supporters were white, which he thought was a pendulum swing in reaction to President Barack Obama winning the previous elections.
Robin Hovis, head of Holmes County, Ohio, Republican party. Photo by Kamala Kelkar
Sen. Vernon Sykes, Emilia Sykes’ father, remembers as a state representative when he introduced the first bill in Ohio to join the National Popular Vote Interstate Compact. It was with some of his black colleagues, though all Emilia remembers was large stacks of paper everywhere.
“That’s often how you have to fight your battles, especially when you’re coming from a minority position,” Emilia Sykes said. “Just waiting for that build up and sometimes it seems like a lifetime and sometimes it actually is a lifetime.”
Left: Sen. Vernon Sykes and Rep. Emilia Sykes. Photo by Kamala Kelkar
Flashback: Love it or hate it, here’s how the Electoral College came to be
As they do every four years, pundits and newscasters again are explaining why we choose a president in the peculiar way we do. By now, our customary amnesia has set in.
Millions of Americans voted for president on Nov. 3, but it is the 538 electors in the 50 states and the District of Columbia who will decide the race when they cast their ballots on Dec. 14. The contemporary mantra “one man, one vote” doesn’t apply. Here is why.
At the Constitutional Convention of 1787, there was limited sympathy among the Founders for allowing the average citizen to vote for president.
George Mason, a Virginia delegate, considered a president elected by popular vote to be a recipe for disaster. He believed “it would be as unnatural to refer the choice of a proper character for chief magistrate to the people as it would to refer a trial of colors to a blind man,” according to notes from the convention.
Instead, the delegates created what came to be called the Electoral College — a college without students, faculty or a campus. A group of elites, it meets only once, in discrete groups, and then vanishes.
But Mason didn’t like that electoral approach either, calling the Electoral College “a mere deception.” Decades later, Thomas Jefferson would refer to it as “the most dangerous blot in our constitution system, and one which some unlucky chance will some day hit, and give us a pope and antipope.”
Jefferson’s reaction reflected his own experience with it. In the drawn-out election of 1800, with no candidate receiving a majority in the Electoral College, the decision fell to the House of Representatives, where after numerous roll calls, Jefferson won out over running mate Aaron Burr.
There was a similar outcry over the Electoral College after the election of 2016 when Hillary Clinton won the popular vote, but Donald Trump won the electors' votes and the White House.
But let’s give those who wrote the Constitution a chance to explain their decision-making.
The Tribune’s archives don’t go back that far, but James Madison, a Virginia delegate, knew he was witnessing history in the making and recorded it in detail.
“I chose a seat in front of the presiding member, with the other members on my right and left hand,” Madison recalled. “In this favorable position for hearing all that passed I noted . what was read from the Chair or spoken by the members.”
Thanks to Madison’s journal, readers can share the sense of urgency delegates brought to the Statehouse in Philadelphia.
The economy was in free fall. In response to a debt crisis, state governments had printed money by the basketful, thereby debasing the currency. Massachusetts' debtors were in armed rebellion. The Articles of Confederation were failing to provide the central governance our fledgling nation needed to survive.
On the fifth day of the convention, delegate Edmund Randolph, Virginia’s governor, stepped forth to propose solutions that included a strong national government. “He . commented on the difficulty of the crisis and the necessity of preventing the fulfillment of the prophecies of the American downfall,” Madison noted.
Subsequent sessions saw endless wrangling over dealing with the crisis. Amid the squabbling, one thing was clear: The British and the Spanish were poised to pick up the pieces should the American experiment fail.
As our nation was then constituted, the office of president didn’t exist. The convention had to create it.
A Short History of the Electoral College, Messy From the Start
Attorney General William Barr has announced that he is authorizing investigation of voter fraud. Sen. Mitch McConnell stated that “until the Electoral College votes, anyone who is running for office can exhaust concerns.” Both these statements promise mischief before Inauguration Day, 2021. The resignation of Justice Department’s Election Crimes Branch head Richard Pilcher, and his subsequent email protesting Barr’s abrogation of “the 40-year Non Interference Policy for ballot fraud,” likewise did not inspire hope.
The Non-Interference Policy advises federal prosecutors in each state to consult with the Election Crimes Branch before investigating possible irregularities but only after state votes have been certified. This certification date is left up to the states, with Delaware’s being the earliest (Nov. 5) and California’s the latest (Dec. 11) Hawaii, New Hampshire, Rhode Island, and Tennessee, along with the territories, have no set dates. Barr’s authorization enables prosecutors to carry out investigations immediately. The potential for confusion and legal conflict is great, which is the point.
When people vote for president, they do not select a candidate but electors in the Electoral College. In Article II (dealing with the Executive), Section I, the Constitution sets the number of each state’s electors as that of the combined number of its Representatives and Senators. It also allows states to set rules by which electors are selected. Washington has 12 electors appointed from lists supplied by political parties and approved by the Secretary of State. In our state, electors pledge to vote for the candidate nominated by their party. Each elector votes twice: for president and vice president.
In the 2016 presidential election four electors voted otherwise and were fined $1,000. Known as “faithless electors,” they sued, and the case went to the Supreme Court which ruled unanimously that they be required to vote as their state permits (italics mine). Forty states have similar rules regarding faithful electors others do not. How much latitude do electors have for their votes? However much their state permits. Keep in mind that most states have Republican governors or legislatures. (As Mark Twain said, the people are never happier than when their state legislature is not in session.)
The Constitution sets the first Monday after the second Wednesday in December (December 14 in 2020) as the date when electors vote in the states. The nearly six-week gap between November and December reflected transportation difficulties in late 18 th century America. Today’s Covid-19 pandemic poses similar problems. Once the votes are certified, governors send copies by registered mail to the Federal Archivist, David Ferriero, a 2009 Obama appointee, and to the President of the Senate, in this case, Mike Pence. It seems obvious that Trump gutted the Post Office budget to suppress votes but also to buy time.
The Electoral College was problematic since its troubled origin. An initial problem stipulated that the person getting the most votes became president and the person with the second most became vice president. Vice presidential elections became chaotic, since you could elect a president and vice president from competing parties. George Washington quit his office in 1796 after two terms to avoid the rancor, but the situation only got worse. The contested election of 1800 went to the House where 36 ballots were required before Thomas Jefferson was elected president. The Twelfth Amendment adopted in 1804 corrected some of the College’s shortcomings but not all.
Five times since 1789, electors have voted in presidents who did not win the popular vote. The most egregious example being the 1824 election between Andrew Jackson and Martin Van Buren when Jackson won a plurality but not the necessary majority of electoral votes. It was alleged that Van Buren got the votes he needed by promising Henry Clay appointment as his Secretary of State. Van Buren’s victory and the supposed deal stunned Jackson and shocked even politicians. Jackson ran and won again in 1828, charging that his 1824 “election” had been stolen from him. The legacy of corruption persists.
On January 6, the Senate and the House meet in the Senate chamber to conduct the official count presided over by Pence. At the end, they announce which candidates, if any, have won. If no one has the needed 270 votes, the House will cast the deciding vote for president, but each state’s congressional contingent will have only one vote. Thus, California, with 55 House members, gets one vote, the same as Alaska and Wyoming, which each have only one House member.
If the presidential vote moves to the House, the vice presidential vote goes to the Senate — another oddball aspect. If Biden won, he could get Pence for veep. Another curiosity: if the Democrats manage to win 50-50 representation in the Senate, Pence, being the soon-to-leave president of the Senate, could vote for himself.
No one can throw a fecal storm like Trump, and we are in for many weeks of turgid political melodrama. Even if Biden and Harris manage to win, Trump will have further weakened the Constitutional underpinnings of government and its institutions which have been shown to be shockingly fragile.
State Discretion in Choosing Electors
Although Clause 2 seemingly vests complete discretion in the states, certain older cases had recognized a federal interest in protecting the integrity of the process. Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector.94 Its power to protect the choice of electors from fraud or corruption was sustained.95 “If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.”96
More recently, substantial curbs on state discretion have been instituted by both the Court and the Congress. In Williams v. Rhodes,97 the Court struck down a complex state system that effectively limited access to the ballot to the electors of the two major parties. In the Court’s view, the system violated the Equal Protection Clause of the Fourteenth Amendment because it favored some and disfavored others and burdened both the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice. For the Court, Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny.98 Then, in Oregon v. Mitchell,99 the Court upheld the power of Congress to reduce the voting age in presidential elections100 and to set a thirty-day durational residency period as a qualification for voting in presidential elections.101 Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes,102 is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment103 may override state practices that violate that Amendment and may substitute standards of its own.
Whether state enactments implementing the authority to appoint electors are subject to the ordinary processes of judicial review within a state, or whether placement of the appointment authority in state legislatures somehow limits the role of state judicial review, became an issue during the controversy over the Florida recount and the outcome of the 2000 presidential election. The Supreme Court did not resolve this issue, but in a remand to the Florida Supreme Court, suggested that the role of state courts in applying state constitutions may be constrained by operation of Clause 2.104 Three Justices elaborated on this view in Bush v. Gore,105 but the Court ended the litigation—and the recount—on the basis of an equal protection interpretation, without ruling on the Article II argument.
The Electoral College Has Been Divisive Since Day One
The Electoral College polarized Americans from its inception. Created by the framers of the Constitution during the 1787 Constitutional Convention in Philadelphia, the College was put forth as a way to give citizens the opportunity to vote in presidential elections, with the added safeguard of a group of knowledgeable electors with final say on who would ultimately lead the country, another limit on the burgeoning nation’s democratic ideals.
The story of the Electoral College is also one of slavery—an institution central to the founding of American democracy. The bulk of the new nation’s citizenry resided in cities like Philadelphia and Boston in the North, leaving the South sparsely populated by farmers, plantation owners, other landholders, and, of course, enslaved laborers. This disparity in the population distribution became a core element of the legislative branch, and in turn, the Electoral College.
"[Southerners] wanted slaves to count the same as anyone else, and some northerners thought slaves shouldn’t be counted at all because they were treated as property rather than as people," says author Michael Klarman, a professor at Harvard Law School. In his recently released book, The Framers’ Coup, Klarman discusses how each framer’s interests came into play while creating the document that would one day rule the country.
“One of two biggest divisions at the Philadelphia convention was over how slaves would count in purposes of apportioning the House of Representatives," he explains. The issue vexed and divided the founders, presenting what James Madison, a slave owner, called a “difficulty…of a serious nature."
At the time, a full 40 percent of the South’s population was enslaved, and the compromise famously reached by the founding fathers determined that each slave would be counted as three-fifths of a person when it came to dividing the nation into equal congressional districts. The Electoral College, in turn, provided each state with an allotment of electors equivalent to its Congressional delegation (two senators plus its number of representatives).
Robert W. Bennett, author of Taming the Electoral College and a law professor at Northwestern University, notes that neither women nor white men without property could vote at the time, either—meaning that slavery was not the only factor that made the allocation of the Electoral College out of sync with reality. “A relatively small number of people actually had the right to vote,” he says.
As the voting public has evolved and become more knowledgeable, the outcry against the Electoral College has never abated. According to the National Archives, the past 200 years have brought more than 700 proposed Constitutional amendments to either “reform or eliminate” the Electoral College. This month, Senator Barbara Boxer of California authored a bill that would abolish the Electoral College in favor of the popular vote.
Even if the Electoral College remains for another 250 years, it will still have to contend with another vestige of its creation—the issue of “faithless electors” who decide to vote against their party’s chosen candidate. Over the years, there have been 157 faithless electors, and while some states require that electors stay true to their state's electoral choice, often requiring a formal pledge, 21 don’t require that kind of loyalty at all.
According to the Archives, 99 percent of electors have kept their pledge and voted for their chosen candidate. But it does happen. The first case of a faithless elector was in 1796, when Samuel Miles of Pennsylvania, for reasons unclear, switched his vote from Federalist John Adams to Democrat-Republican Thomas Jefferson. Over the first century of the College, faithless electors often abstained or changed their votes so out of political spite, not high-minded idealism, and have never changed the result of an election. The 1872 election presented a unique scenario in which the losing candidate, Democrat Horace Greeley, died unexpectedly in the period between the election and the Electoral College vote. Their votes ended up being split between three other Democratic candidates, with 19 abstentions, none of which changed the election's outcome—a landslide win by Ulysses S. Grant.
In history books, however, the election is mostly listed as Grant with 286 electoral votes and Greeley as 0—another reminder of the ineffectiveness of faithless electors. Two more recent examples came in 1988 and 2000. In the former, Democrat elector Margaret Leach acted faithlessly as a way to protest the silliness of the process. In the latter, elector Barbara Lett-Simmons of the District of Columbia abstained from voting to highlight the District’s lack of congressional representation. Sitting Vice President Al Gore still lost to Governor George W. Bush, but the total electoral vote added up to 537 votes, one short of the total. D.C. still does not have Congressional representation.
This year, at least one elector has pledged not to cast a vote consistent with his state’s election results. On December 5, Christopher Suprun, a Republican elector from Texas, announced in The New York Times that he intends to cast his electoral vote for Ohio Governor John Kasich, who dropped his presidential bid in May, instead of Donald Trump.
Even though the franchise was long ago extended beyond white, male landowners, and the way Americans vote has changed radically, the Electoral College remains, a vestige of the country's slave-owning past and anti-populist founding. Barring some unprecedented mass of electors following Suprun's lead and acting faithlessly next month, the college will select Trump as the 45th President of the United States, and the fight to reform or banish the College will begin anew.
Editor's Note, December 7, 2016: This story was updated to include the news about elector Christopher Suprun.
About Jennifer Nalewicki
Jennifer Nalewicki is a Brooklyn-based journalist. Her articles have been published in The New York Times, Scientific American, Popular Mechanics, United Hemispheres and more. You can find more of her work at her website.
Various methods for selecting the executive were offered, reviewed, and discarded during the Constitutional Convention: legislative direct gubernatorial electoral and lottery. A decision resulted only late in the Convention, when the Committee of Detail presented executive election by special electors selected by the state legislatures. This compromise preserved states’ rights, increased the independence of the executive branch, and avoided popular election. In this plan, Congress plays a formal role in the election of the President and Vice President. While Members of Congress are expressly forbidden from being electors, the Constitution requires the House and Senate to count the Electoral College’s ballots, and in the event of a tie, to select the President and Vice President, respectively.
Ways to abolish the Electoral College
The U.S. Constitution created the Electoral College but did not spell out how the votes get awarded to presidential candidates. That vagueness has allowed some states such as Maine and Nebraska to reject “winner-take-all” at the state level and instead allocate votes at the congressional district level. However, the Constitution’s lack of specificity also presents the opportunity that states could allocate their Electoral College votes through some other means.
One such mechanism that a number of states already support is an interstate pact that honors the national popular vote. Since 2008, 15 states and the District of Columbia have passed laws to adopt the National Popular Vote Interstate Compact (NPVIC), which is an multi-state agreement to commit electors to vote for candidates who win the nationwide popular vote, even if that candidate loses the popular vote within their state. The NPVIC would become effective only if states ratify it to reach an electoral majority of 270 votes.
Right now, the NPVIC is well short of that goal and would require an additional 74 electoral votes to take effect. It also faces some particular challenges. First, it is unclear how voters would respond if their state electors collectively vote against the popular vote of their state. Second, there are no binding legal repercussions if a state elector decides to defect from the national popular vote. Third, given the Tenth Circuit decision in the Baca v. Hickenlooper case described above, the NPVIC is almost certain to face constitutional challenges should it ever gain enough electoral votes to go into effect.
A more permanent solution would be to amend the Constitution itself. That is a laborious process and a constitutional amendment to abolish the Electoral College would require significant consensus—at least two-thirds affirmation from both the House and Senate, and approval from at least 38 out of 50 states. But Congress has nearly reached this threshold in the past. Congress nearly eradicated the Electoral College in 1934, falling just two Senate votes short of passage.
However, the conversation did not end after the unsuccessful vote, legislators have continued to debate ending or reforming the Electoral College since. In 1979, another Senate vote to establish a direct popular vote failed, this time by just three votes. Nonetheless, conversation continued: the 95th Congress proposed a total of 41 relevant amendments in 1977 and 1978, and the 116th Congress has already introduced three amendments to end the Electoral College. In total, over the last two centuries, there have been over 700 proposals to either eradicate or seriously modify the Electoral College. It is time to move ahead with abolishing the Electoral College before its clear failures undermine public confidence in American democracy, distort the popular will, and create a genuine constitutional crisis.