by Leslie Kamil, OTR/L, MS, JD

History

The Founding Fathers debated for months over how to elect the president.  Some argued that Congress should pick the president and others insisted on a democratic popular vote. Their compromise is known as the Electoral College. The system calls for the creation, every four years, of a temporary group of electors that are each appointed by the states.

How Are Electors Chosen?

Each state has its own method for choosing electors. Today, the most common method of selecting is by state party convention. In a smaller number of states, electors are chosen by a vote of the state party’s central committee.

There are 538 total electors, including one for each U.S. senator and representative and three electors representing the District of Columbia. Technically, it is these electors, and not the American people, who vote for the president. In modern elections, the first candidate to get 270 of the 538 total electoral votes wins the White House. Most of the time—but not always—the winner of the Electoral College is also the winner of the popular vote.

On the first Monday after the second Wednesday in December, this year December 14, 2020, members of the Electoral College meet in their respective states and cast their official votes for president and vice president. Forty-eight states and the District of Columbia have a winner-take-all system, in which the party whose candidate wins the popular vote in a state appoints all that state’s electors to the Electoral College. Maine and Nebraska have a “district system.” They appoint electors depending on who won the popular vote in each congressional district, plus two electors who are pledged to vote for the overall winner of the state’s popular vote.

Faithless electors have never decided an election, and more than 99 percent of electors in U.S. history have voted as they pledged to do. However, in 2016, seven electors broke with their state on the presidential ballot, and six did so on the vice-presidential ballot. Some of these faithless electors were replaced or fined for their rogue votes, but their votes did not affect the election’s outcome. 

In 2020, the U.S. Supreme Court ruled that the Constitution does not require that people elected to serve in the Electoral College be free to vote as they choose. Instead, the Court held, states have the constitutional power to force electors to vote according to their state’s popular vote. At the time of the Court’s decision, 32 states had passed laws that bind electors, while 18 states had laws on the books giving electors the freedom to vote independently—ensuring that in more ways than one, the Electoral College could continue to provide drama for the foreseeable future. 

Facts about the Electoral College

• The words ‘Electoral College’ does not appear in the Constitution. Article II of the Constitution and the 12th Amendment solely refer to “electors.” The phrase “Electoral College” did not appear in federal law until 1845.
  
• More Constitutional amendments have been proposed to reform or eliminate the Electoral College than on any other subject. There have been over 700 proposals introduced in Congress to reform or eliminate the Electoral College. In 1969, an amendment that passed overwhelmingly in the House (338 to 70) and had the endorsement of President Richard Nixon was filibustered and killed in the Senate. As an end-around to a Constitutional amendment, the NATIONAL POPULAR VOTE INTERSTATE COMPACT is working to have states pledge to award their electors to the winner of the national popular vote. As of December 2012, the bill had been enacted by eight states and the District of Columbia, which together possess a total of 132 electoral votes. The measure would not be enacted until states possessing 270 votes approve it. More about this subject next week.
• On five occasions, the winner of the popular vote did not capture the presidency. The most recent In 2000, George W. Bush captured more electoral votes while earning 500,000 fewer popular votes than Al Gore. In 2016, Donald Trump won the electoral vote despite receiving nearly three million fewer votes than his opponent, Hillary Clinton.
• Two states do not have winner-take-all systems. Nebraska and Maine are the only states that do not automatically award all of their electors to the winner of the state popular vote. Three of Nebraska’s five electoral votes are awarded to the winner of the popular vote in each of its three congressional districts, with the other two given to the statewide winner of the popular vote. Maine has a similar proportional distribution, with two votes awarded to the statewide winner and its other two votes given to the winners in each of its two congressional districts.
• On rare occasions, electors do not vote as pledged. The Constitution and federal law do not require electors to abide by the results of the popular vote in their states, so occasionally “faithless electors” go rogue and cast ballots for candidates other than the one to whom they are pledged. Refer to the 2020 Supreme Court reference above about this issue.
• Electors are prohibited from meeting in one central location. To minimize the chances of corruption, bribery, and backroom deals, electors are prohibited from gathering in one central location to cast their ballots. Thus, electors meet in individual state capitals to vote.
• Members of Congress and federal employees are precluded from serving as electors. The manner of choosing electors is left to the states, although the Constitution stipulates that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

Why Does the Electoral College Still Exist?

It is believed that the party in power typically benefits from the existence of the Electoral College, and the minority party has little chance of changing the system because a constitutional amendment requires a two-thirds supermajority in Congress plus ratification by three-fourths of the states. 

Next Week: PEG will discuss the NATIONAL POPULAR VOTE INTERSTATE COMPACT and the role that the Electoral College has in today’s politics.