BACKGROUND
The Electoral College is the process established under the Constitution to elect the president of the United States. It was devised at the Constitutional Convention as a compromise between the direct election of the president by voters and tasking Congress with electing the president. Instances of candidates winning the Electoral College and the presidency while losing a majority of the popular vote has led to calls for the reform or abolition of the process.
OVERVIEW
The Electoral College was established under Article II, Section 1, Clause 2 of the Constitution. It grants each state a number of electors that’s equal to the size of its Congressional delegation, so each state gets two electors for its senators and one elector for each representative in the House. No members of Congress or other public officials at the federal level are allowed to serve as electors, and the Constitution also prohibits people who previously engaged in insurrection against the U.S. from serving as electors.
Electors are chosen in a two part process: First, state political parties pick slates electors to represent their respective party’s candidate in the Electoral College; then voters in the state cast their ballots in the general election for their preferred presidential candidate and their slate of electors.
Nearly all states allocate their electors in a winner-take-all manner ― so the presidential candidate who wins the popular vote in that state will have their party’s slate of electors cast the state’s votes in the Electoral College. There are two exceptions, as Maine and Nebraska use a proportional system in which the winner of each congressional district receives an electoral vote, and the two remaining electoral votes go to the winner of the statewide popular vote. This creates the potential for a split electoral vote, which has occurred once in each state: Nebraska in 2008 & Maine in 2016.
Since 1964, the Electoral College has consisted of 538 electors, and a majority of 270 is required to elect the president. The Electoral College never meets as a collective body. Rather, electors complete certificates of their vote at their respective state capital under the supervision of the state’s chief election official. The electors complete and mail six certifications of their vote: one for the president of the U.S. Senate (typically the incumbent vice president), two for the National Archivist, two for the state’s Secretary of State, and one to the chief judge of the U.S. District Court where those electors met.
On January 6th following the general election, a joint session of Congress convenes and tallies the Electoral College votes. Each chamber appoints two tellers, one from each party, to read the certified votes. States’ votes are removed from their mahogany boxes and read aloud in alphabetical order. Members of Congress can object to any state’s collective vote or one of its individual votes if at least one representative & one senator raise their objection in writing, which would be followed by a suspension of proceedings, debate, and a vote. A state’s electoral vote could only be disregarded if both chambers vote to do so.
WHAT HAPPENS IF NO CANDIDATE WINS AN ELECTORAL COLLEGE MAJORITY?
If no presidential candidate wins a majority in the Electoral College, the newly-elected House of Representatives would be tasked with electing the president through a process in which each state delegation gets one vote. Those proceedings would begin immediately after the tally of Electoral College votes is completed without a conclusive winner as long as delegations from at least two-thirds of the states are present. The House could only choose from among the three presidential candidates who received the most electoral votes, and would continue voting until it chooses a winner. The Senate would follow a similar procedure to elect a vice president, only it would vote in the normal manner and not through state delegations.
If the House is unable to elect a president by the inauguration on January 20th, the vice president-elect would serve as the acting president under the 20th Amendment. If the Senate also failed to elect a vice president, the Speaker of the House would serve as acting president under the Presidential Succession Act until either the House elects a president or the Senate elects a vice president (neither of these scenarios have ever occurred).
WHY DID THE FOUNDERS CREATE THE ELECTORAL COLLEGE?
In drafting the Constitution, the Founding Fathers made the U.S. a republican form of government that used representative government and federalism to prevent tyranny by a majority of the population and the influence of political factions. This is evidenced in the bicameral composition of the legislative branch ― a state-based Senate and a population-based House of Representatives ― and also in the Electoral College as it selects a president through a mixture of state-based and population-based means.
The Founders arrived at the Electoral College as a compromise between having Congress elect the president and allowing the population to directly elect the president. They worried that giving that power to Congress would violate the separation of powers, and were also concerned that direct elections by uninformed citizens would empower factions to infringe on the rights of other citizens. James Madison explained the concern in Federalist No. 10:
“If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”
As two of the primary advocates for the Electoral College, Alexander Hamilton and James Madison wrote about its merits in the Federalist Papers. In Federalist No. 68, Hamilton wrote that the design would require a successful presidential candidate to have broad appeal across a number of states:
“Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”
In Federalist No. 39, Madison explained the mixed nature of the Electoral College:
“The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic.”
The Electoral College also served another purpose, as it minimized the potential for a split between northern states in the process of abolishing slavery and southern states in which slavery persisted due to the Three-Fifths Compromise. The Three-Fifths Compromise counted slaves as three-fifths of a person for the purposes of the Census, and in turn both Congressional apportionment & the Electoral College. It ultimately limited the slave states’ power relative to the free states in comparison to the clout they would’ve held under a national popular vote in which slaves were counted as a single person.
HAS THE ELECTORAL COLLEGE BEEN REFORMED BEFORE?
Reforms to Electoral College necessarily require an amendment to the Constitution, and to date there have been two amendments which modified its operations:
- The 12th Amendment was ratified in 1804 to clarify that electors could cast one ballot for president and one ballot for vice president, and lowered the number of candidates to be considered by Congress in the event of no candidate achieving a majority in the Electoral College from five to three. It became necessary after the 1796 election, in which John Adams from the Federalist Party won the presidency and his rival Democratic-Republican rival Thomas Jefferson became his vice president, and after the 1800 election between the two went through 36 ballots in the House before the deadlock was broken.
- The 23rd Amendment was ratified in 1961 and gave residents of the District of Columbia the right to vote in presidential elections and representation in the Electoral College as if it were a state. It stipulates that D.C. may never have more electors than the smallest state, so it has never had more than three electors.
WHAT IS THE NATIONAL POPULAR VOTE INTERSTATE COMPACT?
The National Popular Vote Interstate Compact is an agreement between several states and the District of Columbia in which parties to the compact award all of their electoral votes to the winner of the national popular vote. Its aim is to gain enough signatories with sufficient electoral votes to negate the Electoral College by awarding a majority of electors to the winner of the national popular vote, at which point the compact would have legal force.
As of February 2020, 15 states plus D.C. has signed onto the compact, representing 196 electoral votes. It’s expected that if the NPVIC gains the consent of states with at least 270 electoral votes between them, it would become the subject of significant legal challenges that would likely reach the Supreme Court before it could take effect.
Advocates for the National Popular Vote Interstate Compact argue that it would have a much greater likelihood of delivering a national popular vote than an effort to abolish the Electoral College through a constitutional amendment, given the difficulties of securing supermajorities in Congress and the possibility that smaller states may decline to ratify it. They also argue that the Electoral College has on several occasions delivered a victory to a presidential candidate who lost the national popular vote, including:
- 1824, when John Quincy Adams won through election by the House after the Electoral College failed to deliver a majority, despite Andrew Jackson winning the popular vote by 38,149 votes.
- 1876, when Rutherford Hayes won a majority in the Electoral College despite losing the popular vote by 254,235 votes to Samuel Tilden.
- 1888, when Benjamin Harrison won a majority in the Electoral College despite losing the popular vote by 90,596 votes to Grover Cleveland.
- 2000, when George W. Bush won a majority in the Electoral College despite losing the popular vote by 543,895 to Al Gore.
- 2016, when Donald Trump won a majority in the Electoral College despite losing the popular vote by 2,868,686 to Hillary Clinton.
Opponents of the National Popular Vote Interstate Compact argue that its implementation would lead to candidates focusing their campaigns on urban areas and neglecting rural areas, creating a regionalism that’s contrary to the goals of the Electoral College. It could also create the need for a nationwide recount of the election’s results if there was a challenge. The NPVIC’s detractors also use several lines of argument to push back on its constitutionality, contending that:
- The NPVIC violates the Constitution’s Compact Clause, which requires congressional approval for any interstate agreements which alter the vertical balance of power between the federal government and the states in the agreement, or the horizontal balance of power between the states within the agreement and those that aren’t party to it.
- The NPVIC negates provisions in the Constitution related to the powers of Congress in presidential elections in which there is no majority in the Electoral College.
- States’ ability to choose the method of selecting their electors is limited by the plenary powers doctrine and by Supreme Court precedent, which could render the NPVC unconstitutional.
- The NPVIC violates the statutory goals of the Voting Rights Act by diluting the relative voting power of minorities in populous states, and the Equal Protection Clause of the 14th Amendment because of disparities between states in terms of voter eligibility (e.g. voting by felons).
WHAT ARE FAITHLESS ELECTORS?
Faithless electors are members of the Electoral College who “break faith” by voting for a candidate other than the candidate they were pledged to or by failing to vote.
States choose electors in a variety of ways, some directly elect them, others are chosen at party conventions or by candidates’ campaign committees ― all of which are aimed at preventing faithlessness. Many states have also enacted laws to require electors to vote for the candidate they were pledged to, disqualify & replace an elector who breaks their pledge, or assess a fine against a faithless elector.
Only once have faithless electors impacted the outcome of an election: In the 1796, 18 faithless electors’ decision to not vote for Thomas Pinckney resulted in Federalist President John Adams having a vice president who was his primary rival for the office, Democratic-Republican Thomas Jefferson. This was before the ratification and implementation of the 12th Amendment, which prevented the recurrence such an outcome.
In 1952, the Supreme Court upheld state laws requiring electors to pledge to vote for their candidate, although it didn’t address the issue of binding or replacing their vote at that time.
In 2020, the Supreme Court issued a unanimous ruling that states are able to replace or fine faithless electors who vote against the candidate they were pledged to based on the popular vote in their state.
WHAT DO SUPPORTERS OF THE ELECTORAL COLLEGE SAY?
The Electoral College’s structure requires presidential candidates to pursue the support of voters across numerous states and regions, which prevents them from biasing their platforms to suit a specific region or to more urban areas.
WHAT DO OPPONENTS OF THE ELECTORAL COLLEGE SAY?
The Electoral College’s structure has denied the presidency to the winner of the national popular vote on several occasions, and should be eliminated in favor of a popular vote that would count each vote equally.
RESOURCES
— Eric Revell
(Photo Credit: iStock.com / JakeOlimb)
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