Electoral College United States
Note: Contrary to what
must people believe, presidential elections are not won by popular vote, but
are determined by the Electoral Collage. A presidential candidate can win the
popular vote of a state, but can lose the election when the members of the States
Electoral College meet and vote.
For example in the
2012 presidential election when states declared winners even before half of the
total votes were even counted. Another example is the City of Philadelphia,
Pennsylvania in one precinct alone, had more votes cased then had people living
in that precinct.
The United States
Electoral College is the institution that elects the President and Vice
President of the United
States every four years. Citizens of the United States
do not directly elect the president or the vice president; instead, these
voters directly elect designated intermediaries called "electors,"
who almost always have pledged to vote for particular presidential and vice
presidential candidates "though unpledged electors are possible" and
who are themselves selected according to the particular laws of each state.
Electors are apportioned to each of the 50 states as well as to the District of Columbia "also known as Washington, D.C.".
The number of electors in each state is equal to the number of members of Congress
to which the state is entitled, while the Twenty-third Amendment grants the District of Columbia the
same number of electors as the least populous state, currently three. Therefore,
in total, there are currently 538 electors, corresponding to the 435 members of
the House of Representatives and 100 senators, plus the three additional
electors from the District of
Columbia.
Except for the electors in Maine
and Nebraska,
electors are elected on a "winner-take-all" basis. That is, all
electors pledged to the presidential candidate who wins the most votes in a
state become electors for that state. Maine
and Nebraska
use the "congressional district method", selecting one elector within
each congressional district by popular vote and selecting the remaining two
electors by a statewide popular vote. Although no elector is required by
federal law to honor a pledge, there have only been very few occasions when an elector
voted contrary to a pledge. The Twelfth Amendment, in specifying how a
president and vice president are elected, requires each elector to cast one
vote for president and another vote for vice president.
The candidate that receives an absolute majority of
electoral votes "currently 270" for the office of president or of
vice president is elected to that office. The Twelfth Amendment provides for
what happens if the Electoral College fails to elect a president or vice
president. If no candidate receives a majority for president, then the House of
Representatives will select the president, with each state delegation "instead
of each representative" having only one vote. If no candidate receives a
majority for vice president, then the Senate will select the vice president, with
each senator having one vote. On four occasions, most recently in 2000, the
Electoral College system has resulted in the election of a candidate who did
not receive the most popular votes in the election.
Electoral College map showing the results of the 2012 U.S.
presidential election. President Barack Obama (D-IL) won the popular vote in 26
states and the District of Columbia "denoted in blue" to capture 332
electoral votes. Former Governor Mitt Romney (R-MA) won the popular vote in 24
states "denoted in red" to capture 206 electoral votes.
Cartogram representation of the Electoral College vote for
the 2012 election, with each square representing one electoral vote
Background
The Constitutional Convention in 1787 used the Virginia Plan
as the basis for discussions, as the Virginia
delegation had proposed it first. The Virginia Plan called for the Congress to
elect the president. Delegates from a majority of states agreed to this mode of
election. However, the Committee of Eleven, formed to work out various details
including the mode of election of the president, recommended instead that the
election be by a group of people apportioned among the states in the same
numbers as their representatives in Congress "the formula for which had
been resolved in lengthy debates resulting in the Connecticut Compromise and Three-fifths
compromise", but chosen by each state "in such manner as its
Legislature may direct." Committee member Gouverneur Morris explained the
reasons for the change; among others, there were fears of "intrigue"
if the president were chosen by a small group of men who met together
regularly, as well as concerns for the independence of the president if he was
elected by the Congress. Some delegates, including James Wilson and James
Madison, preferred popular election of the executive. Madison acknowledged that while a popular
vote would be ideal, it would be difficult to get consensus on the proposal
given the prevalence of slavery in the South:
There was one difficulty however of
a serious nature attending an immediate choice by the people. 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. The
substitution of electors obviated this difficulty and seemed on the whole to be
liable to the fewest objections.
The Convention approved the Committee's Electoral College
proposal, with minor modifications, on September 6, 1787. Delegates from the
small states generally favored the Electoral College out of concern that the
large states would otherwise control presidential elections.
In The Federalist
Papers, James Madison explained his views on the selection of the president and
the Constitution. In Federalist No. 39, Madison
argued that the Constitution was designed to be a mixture of state-based and population-based
government. Congress would have two houses: the state-based Senate and the
population-based House of Representatives. Meanwhile, the president would be
elected by a mixture of the two modes. Additionally, in the Federalist No. 10,
James Madison argued against "an interested and overbearing majority"
and the "mischief's of faction" in an electoral system. He defined a
faction as "a number of citizens whether amounting to a majority or
minority of the whole, who are united and actuated by some common impulse of
passion, or of interest, adverse to the rights of other citizens, or to the
permanent and aggregate interests of the community." Republican government
"i.e., federalism, as opposed to direct democracy", with its varied
distribution of voter rights and powers, would countervail against factions. Madison further postulated
in the Federalist No. 10 that the greater the population and expanse of the Republic,
the more difficulty factions would face in organizing due to such issues as sectionalism.
Although the United States Constitution refers to
"Electors" and "electors", neither the phrase
"Electoral College" nor any other name is used to describe the
electors collectively. It was not until the early 19th century that the name
"Electoral College" came into general usage as the collective
designation for the electors selected to cast votes for president and vice
president. It was first written into federal law in 1845 and today the term
appears in 3 U.S.C. § 4, in the section heading and in the text as
"college of electors".
History
Original plan
Article II, Section 1, Clause 2 of the Constitution states:
Each State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of Electors, equal to
the whole Number of Senators and Representatives to which the State may be
entitled in the Congress: but no Senator or Representative, or Person holding
an Office of Trust or Profit under the United States, shall be appointed
an Elector.
Article II, Section 1, Clause 4 of the Constitution states:
The Congress may determine the Time
of choosing the Electors, and the Day on which they shall give their Votes;
which Day shall be the same throughout the United States.
Article II, Section 1, Clause 3 of the Constitution provided
for the original fashion by which the president and vice president were to be
chosen by the electors. In the original system, the candidate who received a
majority of votes from the electors would become president; the candidate
receiving the second most votes would become vice president.
The design of the Electoral College was based upon several
assumptions and anticipations of the Framers of the Constitution:
- Each state legislature would determine a system of allocating electors. First systems included legislatures, district plans and direct popular voting.
- Each presidential elector would exercise independent judgment when voting.
- Candidates would not pair together on the same ticket with assumed placements toward each office of president and vice president.
- The system as designed would rarely produce a winner, thus sending the election to Congress.
On these facts, some scholars have described the Electoral
College as being intended to nominate candidates from which the Congress would
then select a president and vice president.
Each state government is free to have its own plan for
selecting its electors, and the Constitution does not require states to
popularly elect their electors. Several different methods for selecting
electors are described at length below.
Breakdown and revision
The emergence of political parties and nationally
coordinated election campaigns soon complicated matters in the elections of 1796
and 1800. In 1796, Federalist Party candidate John Adams won the presidential
election; by finishing in second place, Democratic-Republican Party candidate Thomas
Jefferson, the Federalists' opponent, became the vice president. This resulted
in the President and Vice President not being of the same political party.
In 1800, the Democratic-Republican Party again nominated Jefferson for president, and also nominated Aaron Burr
for vice president. After the election, Jefferson and Burr both obtained a
majority of electoral votes, but tied one another with 73 votes each. Since
ballots did not distinguish between votes for president and votes for vice
president, every ballot cast for Burr technically counted as a vote for him to
become president, despite Jefferson clearly
being his party's first choice. Lacking a clear winner by constitutional
standards, the election had to be decided by the House of Representatives
pursuant to the Constitution's contingency election provision.
Having already lost the presidential contest, Federalist
Party representatives in the lame duck House session seized upon the
opportunity to embarrass their opposition and attempted to elect Burr over Jefferson. The House deadlocked for 35 ballots as neither
candidate received the necessary majority vote of the state delegations in the
House "the votes of nine states were needed for an election".
Jefferson achieved electoral victory on the 36th ballot, but only after
Federalist Party leader Alexander Hamilton, who disfavored Burr's personal
character more than Jefferson's policies—had made known his preference for
Jefferson.
Responding to the problems from those elections, the
Congress proposed the Twelfth Amendment in 1803, prescribing electors cast
separate ballots for president and vice president, to replace the system
outlined in Article II, Section 1, Clause 3. By June 1804, the states had
ratified the amendment in time for the 1804 election.
Fourteenth Amendment
Section 2 of the Fourteenth Amendment allows for a state's
representation in the House of Representatives to be reduced to the extent that
state unconstitutionally denies people the right to vote.
On May 8, 1866, during a debate on the Fourteenth Amendment,
Thaddeus Stevens, the leader of the Republicans in the House of Representatives,
delivered a speech on the amendment's intent. Regarding Section 2, he said:
The second section I consider the
most important in the article. It fixes the basis of representation in
Congress. If any State shall exclude any of her adult male citizens from the
elective franchise, or abridge that right, she shall forfeit her right to
representation in the same proportion. The effect of this provision will be
either to compel the States to grant universal suffrage or so shear them of
their power as to keep them forever in a hopeless minority in the national
Government, both legislative and executive.
Federal law (2 U.S.C. § 6) implements
Section 2's mandate
Modern mechanics
Summary
Even though the aggregate national popular vote is
calculated by state officials, media organizations, and the Federal Election
Commission, the people only indirectly elect the president, as the national
popular vote is not the basis for electing the president or vice president. The President and Vice President of the United States are elected by the Electoral
College, which consists of 538 presidential electors from the fifty states and Washington, D.C..
Presidential electors are selected on a state-by-state basis, as determined by
the laws of each state. Since the election of 1824, most states have appointed their electors on a winner-take-all basis,
based on the statewide popular vote on Election Day. Maine
and Nebraska
are the only two current exceptions, as both states use the congressional
district method. Although ballots list the names of the presidential and vice
presidential candidates "who run on a ticket", voters actually choose
electors when they vote for president and vice president. These presidential
electors in turn cast electoral votes for those two offices. Electors usually
pledge to vote for their party's nominee, but some "faithless electors"
have voted for other candidates.
A candidate must receive an absolute majority of electoral
votes "currently 270" to win the presidency or the vice presidency.
If no candidate receives a majority in the election for president and/or vice
president, that election is determined via a contingency procedure established
by the Twelfth Amendment. In such a situation, the House chooses one of the top
three presidential electoral vote-winners as the president, while the Senate
chooses one of the top two vice presidential electoral vote-winners as vice
president.
Electors
Apportionment
State population per electoral vote for the 50 states and Washington D.C..
A state's number of electors equals the number of
representatives and senators the state has in the United States Congress. In
the case of representatives, this is based on the respective populations. Each
state's number of representatives is determined every 10 years by the United
States Census. In the case of senators, each state is entitled to two.
Under the Twenty-third Amendment, Washington, D.C.
is allocated as many electors as it would have if it were a state, but no more
electors than the least populous state. The least populous state "which is
Wyoming
according to the 2010 Census" has three electors; thus, D.C. cannot have
more than three electors. Even if D.C. were a state, its population would
entitle it to only three electors; based on its population per electoral vote,
D.C. has the second highest per-capita Electoral College representation, after Wyoming.
Currently, there is a total of 538 electors, there being 435
representatives and 100 senators, plus the three electors allocated to Washington, D.C..
The six states with the most electors are California
(55), Texas (38), New
York (29), Florida (29), Illinois (20) and Pennsylvania
(20). The seven smallest states by population, Alaska,
Delaware, Montana,
North Dakota, South
Dakota, Vermont, and Wyoming, have three
electors each. This is because each of these states are entitled to one
representative and two senators.
Selection
Article II, Section 1, Clause 2 of the Constitution requires
each state legislature to determine how electors for the state are to be
chosen, but it disqualifies any person holding a federal office, either elected
or appointed, from being an elector. Under Section 3 of the Fourteenth
Amendment, any person who has sworn an oath to support the United States
Constitution in order to hold either a state or federal office, and later
rebelled against the United
States, is disqualified from being an
elector. However, the Congress may remove this disqualification by a two-thirds
vote in each House.
Candidates for elector are nominated by their state
political parties in the months prior to Election Day. In some states, the
electors are nominated in primaries, the same way that other candidates are
nominated. In some states, such as Oklahoma, Virginia and North
Carolina, electors are nominated in party
conventions. In Pennsylvania,
the campaign committee of each candidate names their candidates for elector "an
attempt to discourage faithless electors".
Since the Civil War, all states have chosen presidential
electors by popular vote. This process has been normalized to the point that
the names of the electors appear on the ballot only in a handful of states.
The Tuesday following the first Monday in November has been
fixed as the day for holding federal elections, called the Election Day. Forty
eight states and Washington,
D.C., employ the
"winner-takes-all method", each awarding its electors as a single
bloc. Maine and Nebraska use the "congressional
district method", selecting one elector within each congressional district
by popular vote and selecting the remaining two electors by a statewide popular
vote. This method has been used in Maine since
1972 and in Nebraska
since 1996.
The current system of choosing electors is called the
"short ballot." In most states, voters choose a slate of electors,
and only a few states list on the ballot the names of proposed electors. In
some states, if a voter wants to write in a candidate for president, the voter
is also required to write in the names of proposed electors.
After the election each state prepares seven Certificates of
Ascertainment, each listing the candidates for president and vice president,
their pledged electors, and the total votes each candidacy received. One certificate
is sent, as soon after Election Day as practicable, to the National Archivist
in Washington D.C. The Certificates of Ascertainment are
mandated to carry the State Seal, and the signature of the Governor "in
the case of the District of Columbia, the
Certificate is signed by the Mayor of the District of Columbia".
Meetings
Certificate for the electoral vote for Rutherford B. Hayes
and William A. Wheeler for the State of Louisiana
The Electoral College never actually meets as one body.
Electors chosen on Election Day meet in their respective state capitals "electors
for the District of Columbia meet within the District" on the Monday after
the second Wednesday in December, at which time they cast their electoral votes
on separate ballots for president and vice president.
Although procedures in each state vary slightly, the
electors generally follow a similar series of steps, and the Congress has
constitutional authority to regulate the procedures the states follow. The
meeting is opened by the election certification official, often that state's secretary
of state or equivalent, who reads the Certificate of Ascertainment. This
document sets forth who was chosen to cast the electoral votes. The attendance
of the electors is taken and any vacancies are noted in writing. The next step
is the selection of a president or chairman of the meeting, sometimes also with
a vice chairman. The electors sometimes choose a secretary, often not himself
an elector, to take the minutes of the meeting. In many states, political
officials give short speeches at this point in the proceedings.
When the time for balloting arrives, the electors choose one
or two people to act as tellers. Some states provide for the placing in
nomination of a candidate to receive the electoral votes "the candidate
for president of the political party of the electors". Each elector
submits a written ballot with the name of a candidate for president. In New Jersey, the electors cast ballots by checking the
name of the candidate on a pre-printed card; in North Carolina, the electors write the name
of the candidate on a blank card. The tellers count the ballots and announce
the result. The next step is the casting of the vote for vice president, which
follows a similar pattern.
Each state's electors must complete six Certificates of
Vote. Each Certificate of Vote must be signed by all of the electors and a
Certificate of Ascertainment must be attached to each of the Certificates of
Vote. Each Certificate of Vote must include the names of those who received an
electoral vote for either the office of president or of vice president. The
electors certify the Certificates of Vote and copies of the Certificates are
then sent in the following fashion:
- One is sent by registered mail to the President of the Senate "who usually is the vice president";
- Two are sent by registered mail to the Archivist of the United States;
- Two are sent to the state's Secretary of State; and
- One is sent to the chief judge of the United States district court where those electors met.
A staff member of the President of the Senate collects the
Certificates of Vote as they arrive and prepares them for the joint session of
the Congress. The Certificates are arranged, unopened, in alphabetical order
and placed in two special mahogany boxes. Alabama
through Missouri "including the District of Columbia" are placed in one box and Montana through Wyoming
are placed in the other box.
Faithlessness
A faithless elector is one who casts an electoral vote for
someone other than the person pledged or does not vote for any person.
Twenty-four states have laws to punish faithless electors. In 1952, the
constitutionality of state pledge laws was brought before the Supreme Court in Ray
v. Blair, 343 U.S. 214 "1952". The Court ruled in favor of state laws
requiring electors to pledge to vote for the winning candidate, as well as
removing electors who refuse to pledge. As stated in the ruling, electors are
acting as a functionary of the state, not the federal government. Therefore, states
have the right to govern electors. The
constitutionality of state laws punishing electors for actually casting a
faithless vote, rather than refusing to pledge, has never been decided by the
Supreme Court. While many only punish a faithless elector after-the-fact,
states like Michigan
also specify that the faithless elector's vote be voided.
As electoral slates are typically chosen by the political
party or the party's presidential nominee, electors usually have high loyalty
to the party and its candidate: a faithless elector runs a greater risk of
party censure than criminal charges.
Faithless electors have not changed the outcome of any
presidential election to date. For example, in 2000 elector Barbara
Lett-Simmons of Washington,
D.C. chose not to vote, rather
than voting for Al Gore as she had pledged to do. This was done as an act of
protest against Washington,
D.C.'s lack of congressional
voting representation. That elector's abstention did not change who won that
year's presidential election, as George W. Bush received a majority "271"
of the electoral votes.
Joint session of Congress and
the contingent election
The Twelfth Amendment mandates that the Congress assemble in
joint session to count the electoral votes and declare the winners of the
election. The session is ordinarily required to take place on January 6 in the
calendar year immediately following the meetings of the presidential electors.
Since the Twentieth Amendment, the newly elected House declares the winner of
the election; all elections before 1936 were determined by the outgoing House
instead.
The meeting is held at 1:00 pm in the Chamber of the
U.S. House of Representatives. The sitting vice president is expected to
preside, but in several cases the President pro
tempore of the Senate has chaired the proceedings instead. The vice
president and the Speaker of the House sit at the podium, with the vice
president in the seat of the Speaker of the House. Senate pages bring in the
two mahogany boxes containing each state's certified vote and place them on
tables in front of the senators and representatives. Each house appoints two
tellers to count the vote "normally one member of each political party".
Relevant portions of the Certificate of Vote are read 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 is signed by at least
one member of each house of Congress. An objection supported by at least one
senator and one representative will be followed by the suspension of the joint
session and by separate debates and votes in each House of Congress; after both
Houses deliberate on the objection, the joint session is resumed. A State's
certificate of vote can be rejected only if both Houses of Congress vote to
accept the objection. In that case, the votes from the State in question are
simply ignored. The votes of Arkansas and Louisiana were rejected
in the presidential election of 1872.
Objections to the electoral vote count are rarely raised,
although it did occur during the vote count in 2001 after the close 2000
presidential election between Governor George W. Bush of Texas
and the Vice President of the United
States, Al Gore. Vice President Gore, who as
vice president was required to preside over his own Electoral College defeat "by
five electoral votes", denied the objections, all of which were raised
only by several House members and would have favored his candidacy, after no
senators would agree to jointly object. Objections were again raised in the
vote count of the 2004 elections, and on that occasion the document was
presented by one representative and one senator. Although the joint session was
suspended, the objections were quickly disposed of and rejected by both Houses
of Congress. If there are no objections or all objections are overruled, the
presiding officer simply includes a State's votes, as declared in the
certificate of vote, in the official tally.
After the certificates from all States are read and the
respective votes are counted, the presiding officer simply announces the final
result of the vote and, provided that the required absolute majority of votes
was achieved, declares the names of the persons elected president and vice
president. This announcement concludes the joint session and formalizes the
recognition of the president-elect and of the vice president-elect. The
senators then depart from the House Chamber. The final tally is printed in the
Senate and House journals.
Contingent presidential
election by House
Pursuant to the Twelfth Amendment, the House of
Representatives is required to go into session immediately to vote for
president if no candidate for president receives a majority of the electoral
votes "since 1964, 270 of the 538 electoral votes".
In this event, the House of Representatives is limited to
choosing from among the three candidates who received the most electoral votes.
Each state delegation votes en bloc –
each delegation having a single vote; the District of Columbia does not receive a vote.
A candidate must receive an absolute majority of state delegation votes "i.e.,
at present, a minimum of 26 votes" in order for that candidate to become
the President-elect. Additionally,
delegations from at least two-thirds of all the states must be present for
voting to take place. The House continues balloting until it elects a
president.
The House of Representatives has chosen the president only
twice: in 1801 under Article II, Section 1, Clause 3 and in 1825 under the
Twelfth Amendment.
Contingent vice presidential
election by Senate
If no candidate for vice president receives an absolute
majority of electoral votes, then the Senate must go into session to elect a
vice president. The Senate is limited to choosing from only the top two
candidates to have received electoral votes "one fewer than the number to
which the House is limited". The Senate votes in the normal manner in this
case "i.e., ballots are individually cast by each senator, not by state
delegations". However, two-thirds of the senators must be present for
voting to take place.
Additionally, the Twelfth Amendment states that a
"majority of the whole number" of senators "currently 51 of 100"
is necessary for election. Further, the language requiring an absolute majority
of Senate votes precludes the sitting vice president from breaking any tie
which might occur, although this is disputed by some legal scholars.
The only time the Senate chose the vice president was in 1837.
In that instance, the Senate adopted an alphabetical roll call and voting
aloud. The rules further stated, "[I]f a majority of the number of
senators shall vote for either the said Richard M. Johnson or Francis Granger,
he shall be declared by the presiding officer of the Senate constitutionally
elected Vice President of the United States;" the Senate chose Johnson.
Deadlocked chambers
If the House of Representatives has not chosen a president-elect in time for the
inauguration "noon on January 20", then Section 3 of the Twentieth
Amendment specifies that the vice
president-elect becomes acting president until the House selects a
president. If there is also no vice president-elect in time for the
inauguration, then under the Presidential Succession Act of 1947, the sitting Speaker
of the House would become acting president until either the House selects a
president or the Senate selects a vice president. Neither of these situations
has ever occurred.
Current electoral vote
distribution
The following table shows the number of electoral votes "EV"
to which each state and the District of Columbia will be entitled during the
2012, 2016 and 2020 presidential elections: The numbers in parentheses
represent the number of electoral votes that a state gained (+) or lost (-)
because of reapportionment following the 2010 Census.
*
The District of Columbia,
though not a state, is granted the same number of electoral votes as the least
populous state "which has always been 3" by the Twenty-third
Amendment.
**
Maine and Nebraska electors distributed by way of the Congressional
District Method.
(+)
or (-) represents number of electors gained or lost in comparison to 2004 &
2008 electoral college allocation
Alternative methods of
choosing electors
Before the advent of the short ballot in the early 20th
century, as described above, the most common means of electing the presidential
electors was through the general ticket.
The general ticket is quite similar to the current system and is often confused
with it. In the general ticket, voters cast ballots for individuals running for
presidential elector "while in the short ballot, voters cast ballots for
an entire slate of electors". In the general ticket, the state canvass
would report the number of votes cast for each candidate for elector, a
complicated process in states like New
York with multiple positions to fill. Both the
general ticket and the short ballot are often considered at-large or
winner-takes-all voting. The short ballot was adopted by the various states at
different times; it was adopted for use by North Carolina
and Ohio in
1932. Alabama
was still using the general ticket as late as 1960 and was one of the last
states to switch to the short ballot.
The question of the extent to which state constitutions may
constrain the legislature's choice of a method of choosing electors has been
touched on in two U.S. Supreme Court cases. In McPherson v. Blacker, 146 U.S. 1 (1892), the Court cited Article
II, Section 1, Clause 2 which states that a state's electors are selected
"in such manner as the legislature thereof may direct" and wrote that
these words "operat[e] as a limitation upon the state in respect of any
attempt to circumscribe the legislative power." In Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 "2000",
a Florida Supreme Court decision was vacated "not reversed" based on McPherson. On the other hand, three
dissenting justices in Bush v. Gore,
531 U.S.
98 "2000", wrote: "nothing in Article II of the Federal
Constitution frees the state legislature from the constraints in the State
Constitution that created it."
Appointment by state
legislature
In the earliest presidential elections, state legislative
choice was the most common method of choosing electors. A majority of the
states selected presidential electors by legislation in both 1792 "9 of 15"
and 1800 "10 of 16", and half of the states did so in 1812. Even in the
1824 election, a quarter of states "6 of 24" chose electors by
legislation. In that election, Andrew Jackson lost in spite of having
pluralities of both the popular and electoral votes, with the outcome being
decided by the six state legislatures choosing the electors. Some state
legislatures simply chose electors, while other states used a hybrid method in
which state legislatures chose from a group of electors elected by popular
vote. By 1828, with the rise of Jacksonian democracy, only Delaware
and South Carolina
used legislative choice. Delaware ended its
practice the following election "1832", while South
Carolina continued using the method until it seceded from the Union in December 1860. South Carolina used the popular vote for the
first time in the 1868 election.
Excluding South
Carolina, legislative appointment was used in only
four situations after 1832:
- In 1848, Massachusetts statute awarded the state's electoral votes to the winner of the at-large popular vote, but only if that candidate won an absolute majority. When the vote produced no winner between the Democratic, Free Soil, and Whig parties, the state legislature selected the electors, giving all 12 electoral votes to the Whigs.
- In 1864, Nevada, having joined the Union only a few days prior to Election Day, had no choice but to appoint.
- In 1868, the newly reconstructed state of Florida appointed its electors, having been readmitted too late to hold elections.
- Finally, in 1876, the legislature of the newly admitted state of Colorado used legislative choice due to a lack of time and money to hold an election.
Legislative appointment was brandished as a possibility in
the 2000 election. Had the recount continued, the Florida legislature was prepared to appoint
the Republican slate of electors to avoid missing the federal safe-harbor
deadline for choosing electors.
The Constitution gives each state legislature the power to
decide how its state's electors are chosen and it can be easier and cheaper for
a state legislature to simply appoint a slate of electors than to create a
legislative framework for holding elections to determine the electors. As noted
above, the two situations in which legislative choice has been used since the
Civil War have both been because there was not enough time or money to prepare
for an election. However, appointment by state legislature can have negative
consequences: bicameral legislatures can deadlock more easily than the
electorate. This is precisely what happened to New York in 1789 when the legislature failed
to appoint any electors.
Electoral districts
Another method used early in U.S. history was to divide the
state into electoral districts. By this method, voters in each district would
cast their ballots for the candidate they supported and the winner in each
district would receive that electoral vote. This was similar to how states are
currently separated by congressional districts. However, the difference stems
from the fact that every state always had two more electoral districts than
congressional districts. As with congressional districts, moreover, this method
is vulnerable to gerrymandering.
Proportional vote
Under such a system, electors would be selected in
proportion to the votes cast for their candidate or party, rather than being
selected by the statewide plurality vote.
Congressional District Method
There are two versions of the Congressional District Method:
one has been implemented in Maine and Nebraska; another that has been proposed in Virginia. Under the
implemented Congressional District Method, the electoral votes are distributed
based on the popular vote winner within each of the state's congressional
districts; the statewide popular vote winner receives two additional electoral
votes.
In 2013, a different version of the Congressional District
Method was proposed in Virginia.
This version would distribute Virginia's
electoral votes based on the popular vote winner within each of Virginia's congressional districts; the two statewide
electoral votes would be awarded based on which candidate won the most
congressional districts, rather than on who won Virginia's statewide popular vote.
The Congressional District Method can more easily be
implemented than other alternatives to the winner-takes-all method. State
legislation is sufficient to use this method. Advocates of the Congressional
District Method believe the system would encourage higher voter turnout and
incentivize presidential candidates to broaden their campaigns in
non-competitive states. Winner-take-all systems ignore thousands of popular
votes; in Democratic California there are Republican districts, in Republican
Texas there are Democratic districts. Because candidates have an incentive to
campaign in competitive districts, with a district plan, candidates have an
incentive to actively campaign in over thirty states versus seven
"swing" states. Opponents of the system, however, argue that
candidates might only spend time in certain battleground districts instead of
the entire state and cases of gerrymandering could become exacerbated as
political parties attempt to draw as many safe districts as they can.
Unlike simple congressional district comparisons, the
District Plan popular vote bonus in the 2008 election would have given Obama
56% of the Electoral College versus the 68% he did win, it "would have
more closely approximated the percentage of the popular vote won [53%]".
Implementation
Of the 43 states whose electoral votes could be affected by
the Congressional District Method, only Maine
and Nebraska
apply it. Maine
has four electoral votes, based on its two representatives and two senators. Nebraska has two
senators and three representatives, giving it five electoral votes. Maine began using the
Congressional District Method in the election of 1972. Nebraska has used the Congressional District
Method since the election of 1992. Since the 1830s, the only other state to use
the system is Michigan,
which only used the system for the 1892 presidential election.
The Congressional District Method allows a state the chance
to split its electoral votes between multiple candidates. Before 2008, neither Maine nor Nebraska
had ever split their electoral votes. Nebraska
split its electoral votes for the first time in 2008, giving John McCain its
statewide electors and those of two congressional districts, while Barack Obama
won the electoral vote of Nebraska's
2nd congressional district. Following the 2008 split, some Nebraska Republicans
made efforts to discard the Congressional District Method and return to the
winner-takes-all system. In January 2010, a bill was introduced in the Nebraska legislature to
revert to a winner-take-all system; the bill died in committee in March 2011.
Republicans had also passed bills in 1995 and 1997 to eliminate the
Congressional District Method in Nebraska,
but those bills were vetoed by Democratic Governor Ben Nelson.
In 2010, Republicans in Pennsylvania, who controlled both houses of
the legislature as well as the governorship, put forward a plan to change the
state's winner-takes-all system to a Congressional district method system. Pennsylvania had voted
for the Democratic candidate in the five previous presidential elections, so
many saw this as an attempt to take away Democratic electoral votes. Although
Democrat Barack Obama won Pennsylvania
in 2008, he only won a minority of the state's congressional districts. The
plan later lost support. Other Republicans, including Michigan state representative Pete Lund, RNC
Chairman Reince Priebus, and Wisconsin Governor Scott Walker, have floated
similar ideas.
Contemporary issues
Arguments between proponents and opponents of the current
electoral system include four separate but related topics: indirect election,
disproportionate voting power by some states, the winner-takes-all distribution
method "as chosen by 48 of the 50 states", and federalism. Arguments
against the Electoral College in common discussion mostly focus on the
allocation of the voting power among the states. Gary Bugh' s research of
congressional debates over proposed Electoral College amendments reveals that
reform opponents have often appealed to a traditional version of
representation, whereas reform advocates have tended to reference a more democratic
view.
Criticism
Irrelevancy of national
popular vote
This graphic demonstrates how the winner of the popular vote
can still lose in a hypothetical Electoral College system.
A bar graph of popular votes in presidential elections, with
blue stars marking the four elections in which the winner did not have the
plurality of the popular vote. Black squares mark the cases where the electoral
vote resulted in a tie, or the winner did not have the majority of electoral
votes. An 'H' marks the two cases where the election was decided by the House,
and an 'S' marks the one case where the election was finalized by the Supreme
Court.
The elections of 1876, 1888, and 2000 produced an Electoral
College winner who did not receive at least a plurality of the nationwide
popular vote. In 1824, there were six states in which electors were
legislatively appointed, rather than popularly elected, so the true national
popular vote is uncertain. When no candidate received a majority of electoral
votes in 1824, the election was decided by the House of Representatives and so
could be considered distinct from the latter three elections in which all of
the states had popular selection of electors. The true national popular vote
was also uncertain in the 1960 election, and the plurality for the winner
depends on how votes for Alabama
electors are allocated.
Opponents of the Electoral College claim that such outcomes
do not logically follow the normative concept of how a democratic system should
function. One view is that the Electoral College violates the principle of
political equality, since presidential elections are not decided by the
one-person one-vote principle. Outcomes of this sort are attributable to the
federal nature of the system. From such a configuration, argue supporters of
the Electoral College, candidates must build a popular base that is
geographically broader and more diverse in voter interests. This feature is not
a logical consequence of having intermediate elections of Presidents, but
rather the winner-takes-all method of allocating each state's slate of
electors. Allocation of electors in proportion to the state's popular vote
could reduce this effect.
Scenarios exhibiting this outcome typically result when the
winning candidate has won the requisite configuration of states "and thus
their votes" by small margins, but the losing candidate captured large
voter margins in the remaining states. In this case, the very large margins
secured by the losing candidate in the other states would aggregate to well
over 50 percent of the ballots cast nationally. In a two-candidate race, with
equal voter turnout in every district and no faithless electors, a candidate
could win the Electoral College while winning only about 22% of the nationwide
popular vote. This would require the candidate in question to win each one of
the following states by just one vote: Alabama, Alaska, Arizona, Arkansas,
Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey,
New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South
Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and
Wyoming.
A result of the present functionality of the Electoral
College is that the national popular vote bears no legal or factual
significance on determining the outcome of the election. Since the national
popular vote is irrelevant, both voters and candidates are assumed to base
their campaign strategies around the existence of the Electoral College; any
close race has candidates campaigning to maximize electoral votes by capturing
coveted swing states, not to maximize national popular vote totals.
>The United States is the only
country that elects a politically powerful president via an electoral college
and the only one in which a candidate can become president without having
obtained the highest number of votes in the sole or final round of popular
voting.
— George C. Edwards, 2011
Exclusive focus on large
swing states
These maps show the amount of attention given to each state
by the Bush and Kerry campaigns during the final five weeks of the 2004
election. At the top, each waving hand represents a visit from a presidential
or vice presidential candidate during the final five weeks. At the bottom, each
dollar sign represents one million dollars spent on TV advertising by the
campaigns during the same time period.
According to this criticism, the Electoral College
encourages political campaigners to focus on a few so-called "swing
states" while ignoring the rest of the country. Populous states in which
pre-election poll results show no clear favorite are inundated with campaign
visits, saturation television advertising, get-out-the-vote efforts by party
organizers and debates, while "four out of five" voters in the
national election are "absolutely ignored," according to one
assessment. Since most states use a winner-takes-all arrangement in which the
candidate with the most votes in that state receives all of the state's
electoral votes, there is a clear incentive to focus almost exclusively on only
a few key undecided states; in recent elections, these states have included Pennsylvania,
Ohio, and Florida in 2004 and 2008, and also Colorado in 2012. In contrast,
states with large populations such as California,
Texas, and New York,
have in recent elections been considered "safe" for a particular
party, Democratic for California and New York and Republican for Texas, and therefore campaigns spend less
time and money there. Many small states are also considered to be
"safe" for one of the two political parties and are also generally
ignored by campaigners: of the 13 smallest states, six are reliably Democratic,
six are reliably Republican, and only New
Hampshire is considered as a swing state, according
to critic George C. Edwards III. In the 2008 election, campaigns did not mount
nationwide efforts but rather focused on select states.
It is possible to win the election by winning eleven states
and disregarding the rest of the country. If one ticket were to take California
(55 votes), Texas (38), New York (29), Florida (29), Illinois (20),
Pennsylvania (20), Ohio (18), Michigan (16), Georgia (16), North Carolina (15),
and New Jersey (14) that ticket would have 270 votes, which would be enough to
win. In the close elections of 2000 and 2004, these eleven states gave 111
votes to Republican candidate George W. Bush and 160 votes to Democratic
candidates Al Gore and John Kerry. In 2008, the Democratic candidate Barack
Obama won nine of these eleven states "for 222 electoral votes", with
Republican John McCain taking a combined 49 electoral votes from Texas and Georgia.
Proponents of the Electoral College claim that adoption of
the popular vote would shift the disproportionate focus to large cities at the
expense of rural areas. Candidates might also be inclined to campaign hardest
in their base areas to maximize turnout among core supporters, and ignore more
closely divided parts of the country. Proponents of a national popular vote for
president dismiss such arguments, pointing out that candidates in popular vote
elections for governor and U.S. Senate and for statewide allocation of
electoral votes do not ignore voters in less populated areas.
Discourages turnout and
participation
Except in closely fought swing states, voter turnout is
largely insignificant due to entrenched political party domination in most
states. The Electoral College decreases the advantage a political party or
campaign might gain for encouraging voters to turn out, except in those swing
states. If the presidential election were decided by a national popular vote,
in contrast, campaigns and parties would have a strong incentive to work to
increase turnout everywhere. Individuals would similarly have a stronger
incentive to persuade their friends and neighbors to turn out to vote. The
differences in turnout between swing states and non-swing states under the
current Electoral College system suggest that replacing the Electoral College
with direct election by popular vote would likely increase turnout and
participation significantly.
Obscures disenfranchisement
within states
According to this criticism, the Electoral College reduces elections
to a mere count of electors for a particular state, and, as a result, it
obscures any voting problems within a
particular state. For example, if a particular state blocks some groups from
voting, perhaps by voter suppression methods such as imposing reading tests,
poll taxes, registration requirements, or legally disfranchising specific
minority groups, then voting inside that state would be reduced. But the
state's electoral count would be the same. So disenfranchisement has no effect
on the overall electoral tally. Critics contend that such disenfranchisement is
partially obscured by the Electoral College. A related argument is that the
Electoral College may have a dampening effect on voter turnout: there is no
incentive for states to reach out to more of its citizens to include them in
elections because the state's electoral count remains fixed in any event.
According to this view, if elections were by popular vote, then states would be
motivated to include more citizens in elections since the state would then have
more political clout nationally. Critics contend that the Electoral College
system insulates states from negative publicity as well as possible federal
penalties for disenfranching subgroups of citizens.
Legal scholars Akhil Amar and Vikram Amar have argued that
the original Electoral College compromise was enacted partially because it
enabled the southern states to disenfranchise its slave populations. It
permitted southern states to disfranchise large numbers of slaves while
allowing these states to maintain political clout within the federation by
using the three-fifths compromise. They noted that constitutional Framer James
Madison believed that the question of counting slaves had presented a serious
challenge but that "the substitution of electors obviated this difficulty
and seemed on the whole to be liable to the fewest objections". Akhil and
Vikram Amar added that:
The founders' system also
encouraged the continued disfranchisement of women. In a direct national
election system, any state that gave women the vote would automatically have
doubled its national clout. Under the Electoral College, however, a state had
no such incentive to increase the franchise; as with slaves, what mattered was
how many women lived in a state, not how many were empowered ... a state with
low voter turnout gets precisely the same number of electoral votes as if it
had a high turnout. By contrast, a well-designed direct election system could
spur states to get out the vote.
— Akhil and Vikram Amar
Lack of enfranchisement of U.S.
territories
Territories of the United
States, such as Puerto Rico and Guam,
are not entitled to electors in presidential elections. Constitutionally, only U.S. states "per Article II, Section 1, Clause
2" and Washington, D.C. "per the Twenty-third Amendment"
are entitled to electors. Guam has held
non-binding straw polls for president since the 1980s to draw attention to this
fact. This has also led to various scholars concluding that the U.S. national-electoral
process is not fully democratic.
Favors less populous states
As a consequence of giving more per capita voting power to the less populated states, the Electoral
College gives extra power to voters in those states. For example, an electoral vote
represents over two times as many people in New York
than in South Dakota.
In one countervailing analysis about smaller states gaining an Electoral
College advantage, the Banzhaf power index "BPI" model based on probability
theory was used to test the hypothesis that citizens of small states accrue
more election power. It was found that in 1990, individual voters in California, the largest state, had 3.3 times more
individual power to choose a President than voters of Montana, the largest of the minimum 3
elector states. Banzhaf's method has been criticized for treating votes like
coin-flips, and more empirically based models of voting yield results which
seem to favor larger states less.
Disadvantage for third
parties
In practice, the winner-take-all manner of allocating a
state's electors generally decreases the importance of minor parties. However,
it has been argued that the Electoral College is not a cause of the two-party
system, and that it had a tendency to improve the chances of third-party candidates
in some situations.
Not straightforward
One view is that the Electoral College is overly and
unnecessarily complex:
The Electoral College does not
provide a straightforward process for selecting the president. Instead, it can
be extraordinarily complex and has the potential to undo the people's will at
many points in the long journey from the selection of electors to counting
their votes in Congress.
— George Edwards, 2011
Support
Prevents an urban-centric
victory
Proponents of the Electoral College claim the Electoral
College prevents a candidate from winning the presidency by simply winning in
heavily populated urban areas. This means that candidates must make a wider
geographic appeal than they would if they simply had to win the national
popular vote.
Maintains the federal
character of the nation
The United
States of America is a federal coalition
which consists of component states. Proponents of the current system argue that
the collective opinion of even a small state merits attention at the federal
level greater than that given to a small, though numerically equivalent,
portion of a very populous state. The system also allows each state the freedom,
within constitutional bounds, to design its own laws on voting and
enfranchisement without an undue incentive to maximize the number of votes
cast.
For many years early in the nation's history, up until the Jacksonian
Era, many states appointed their electors by a vote of the state legislature,
and proponents argue that, in the end, the election of the President must still
come down to the decisions of each state, or the federal nature of the United
States will give way to a single massive, centralized government.
In his book A More
Perfect Constitution, Professor Larry Sabato elaborated on this advantage
of the Electoral College, arguing to "mend it, don't end it," in part
because of its usefulness in forcing candidates to pay attention to lightly
populated states and reinforcing the role of the state in federalism.
Enhances status of minority
groups
Instead of decreasing the power of minority groups by
depressing voter turnout, proponents argue that by making the votes of a given
state an all-or-nothing affair, minority groups can provide the critical edge
that allows a candidate to win. This encourages candidates to court a wide
variety of such minorities and advocacy groups.
Encourages stability through
the two-party system
Many proponents of the Electoral College see its negative
effect on third parties as beneficial. They argue that the two party system has
provided stability because it encourages a delayed adjustment during times of
rapid political and cultural change. They believe it protects the most powerful
office in the country from control by what these proponents view as regional
minorities until they can moderate their views to win broad, long-term support
across the nation. Advocates of a national popular vote for president suggest
that this effect would also be true in popular vote elections. Of 918 elections
for governor between 1948 and 2009, for example, more than 90% were won by
candidates securing more than 50% of the vote, and none have been won with less
than 35% of the vote.
Flexibility if a presidential
candidate dies
According to this argument, the fact that the Electoral
College is made up of real people instead of mere numbers allows for human
judgment and flexibility to make a decision, if it happens that a candidate
dies or becomes legally disabled around the time of the election. Advocates of
the current system argue that human electors would be in a better position to
choose a suitable replacement than the general voting public. According to this
view, electors could act decisively during the critical time interval between
when ballot choices become fixed in state ballots until mid-December when the
electors formally cast their ballots. In the election of 1872, losing Democratic
candidate Horace Greeley died during this time interval which resulted in
Democratic disarray, but the Greeley
electors were able to split their votes for different alternate candidates. A
situation in which the winning candidate died has never happened. In the election
of 1912, Vice President Sherman died shortly before the election when it was
too late for states to remove his name from their ballots; accordingly, Sherman
was listed posthumously, but the eight electoral votes that Sherman would have
received were cast instead for Nicholas Murray Butler.
Isolation of election
problems
Some supporters of the Electoral College note that it
isolates the impact of any election fraud, or other such problems, to the state
where it occurs. It prevents instances where a party dominant in one state may
dishonestly inflate the votes for a candidate and thereby affect the election
outcome. For instance, recounts occur only on a state-by-state basis, not
nationwide. Critics of the current system suggest that the results in a single
state – such as Florida
in 2000 – can decide the national election and thus not keep any problems in
such a state isolated from the rest of the nation.
Proposals for reform or
abolition
Bayh–Celler Constitutional
amendment
The closest the country has ever come to abolishing the
Electoral College occurred during the 91st Congress "1969-1971". The presidential
election of 1968 resulted in Richard Nixon receiving 301 electoral votes (56%
of electors), Hubert Humphrey 191 (35.5%) and George Wallace 46 (8.5%) with
13.5% of the popular vote. However, Nixon had only received 511,944 more
popular votes than Humphrey, 43.5% to 42.9%, less than 1% of the national
total.
Representative Emanuel Celler "D – New York",
Chairman of the House Judiciary Committee, responded to public concerns over
the disparity between the popular vote and electoral vote by introducing House
Joint Resolution 681, a proposed Constitutional amendment which would have
replaced the Electoral College with simpler plurality system based on the
national popular vote. With this system, the pair of candidates who had
received the highest number of votes would win the presidency and vice
presidency providing they won at least 40% of the national popular vote. If no
pair received 40% of the popular vote, a runoff election would be held in which
the choice of President and vice president would be made from the two pairs of
persons who had received the highest number of votes in the first election. The
word "pair" was defined as "two persons who shall have consented
to the joining of their names as candidates for the offices of President and
Vice President."
On April 29, 1969, the House Judiciary Committee voted 28 to
6 to approve the proposal. Debate on the proposal before the full House of
Representatives ended on September 11, 1969 and was eventually passed with
bipartisan support on September 18, 1969, by a vote of 339 to 70.
On September 30, 1969, President Richard Nixon gave his
endorsement for adoption of the proposal, encouraging the Senate to pass its
version of the proposal which had been sponsored as Senate Joint Resolution 1
by Senator Birch Bayh "D – Indiana".
On October 8, 1969, the New
York Times reported that 30 state legislatures were "either certain or
likely to approve a constitutional amendment embodying the direct election plan
if it passes its final Congressional test in the Senate." Ratification of
38 state legislatures would have been needed for adoption. The paper also
reported that 6 other states had yet to state a preference, 6 were leaning toward
opposition and 8 were solidly opposed.
On August 14, 1970, the Senate Judiciary Committee sent its
report advocating passage of the proposal to the full Senate. The Judiciary
Committee had approved the proposal by a vote of 11 to 6. The six members who
opposed the plan, Democratic Senators James Eastland of Mississippi,
John Little McClellan of Arkansas and Sam Ervin of North
Carolina along with Republican Senators Roman Hruska of Nebraska, Hiram Fong of Hawaii
and Strom Thurmond of South Carolina,
all argued that although the present system had potential loopholes, it had
worked well throughout the years. Senator Bayh indicated that supporters of the
measure were about a dozen votes shy from the 67 needed for the proposal to
pass the full Senate. He called upon President Nixon to attempt to persuade
undecided Republican senators to support the proposal. However, Nixon, while
not reneging on his previous endorsement, chose not to make any further
personal appeals to back the proposal.
On September 8, 1970, the Senate commenced openly debating
the proposal and the proposal was quickly filibustered. The lead objectors to
the proposal were mostly Southern senators and conservatives from small states,
both Democrats and Republicans, who argued abolishing the Electoral College
would reduce their states' political influence. On September 17, 1970, a motion
for cloture, which would have ended the filibuster, received 54 votes to 36 for
cloture, failing to receive the then required two-thirds majority of senators
voting. A second motion for cloture on September 29, 1970 also failed, by 53 to
34. Thereafter, the Senate Majority Leader, Mike Mansfield of Montana, moved to lay the proposal aside so
that the Senate could attend to other business. However, the proposal was never
considered again and died when the 91st Congress ended on January 3, 1971.
Every Vote Counts Amendment
A joint resolution to amend the United States Constitution,
providing for the popular election of the president and vice president under a
new electoral system was introduced by Representative Gene Green (D) of Texas on January 4,
2005. Representative Green then again introduced the legislation on January 7,
2009 as H.J.Res. 9.
National Popular Vote
Interstate Compact
Several states plus the District of Columbia have joined the
National Popular Vote Interstate Compact. Those jurisdictions joining the compact
agree to pledge their electors to the winner of the national popular vote. The
Compact will not come into effect until a sufficient number of states agree to
the Compact such that a majority "at least 270" of all electors are
pledged to the winner of the national popular vote. As of 2016, 10 states and
the District of Columbia
have joined the compact; collectively, these jurisdictions control 165
electoral votes, which is 61% of the 270 required for the Compact to take
effect.
The Compact is based on the current rule in Article II,
Section 1, Clause 2 of the Constitution that gives each state legislature the plenary
power to determine how it chooses its electors, though some have suggested that
Article I, Section 10, Clause 3 of the Constitution requires congressional
consent before the Compact could be enforcible.
The first state to join the Compact was Maryland, when Governor Martin O'Malley
signed the bill into law on April 10, 2007. New Jersey joined on January 13, 2008,
despite objections from Republicans who criticized the bill as undermining
federal elections. Illinois
passed the law on April 7, 2008. Hawaii
joined on May 1, when the legislature overrode a veto from Governor Linda
Lingle. On April 28, 2009, the State of Washington
joined, when Governor Christine Gregoire signed HB 1598. Massachusetts joined the compact on August
4, 2010, when Governor Deval Patrick signed that state's bill into law.
Additionally, the District of
Columbia, which has three electoral votes, joined the
compact on December 7, 2010. Vermont
joined the compact on April 22, 2011, when Governor Peter Shumlin signed that
state's bill into law. On August 8, 2011, California
joined when Governor Jerry Brown signed a bill adding California to the compact.
Revised: 08 March 2016
