By James Hindon Hyde
You just voted for a presidential candidate, stepped out of the voting booth, slapped an “I Voted” sticker on your chest, and proudly leave the building satisfied that you’ve done your civic duty. The only problem is you didn’t vote for a presidential candidate, per se (although your vote will be counted). You voted for an “elector” who is a member of the Electoral College. And in many states, you have no idea who that is. Huh? I understand your confusion. The Electoral College is one of the most complex electoral systems for choosing a head of state ever devised.
This article provides an overview of how the Electoral College works. The specifics are beyond complex, and numerous laws and initiatives to change the system have emerged over the years, but are beyond the purview of this article. Nonetheless, one of the most contentious aspects of this system is that it trumps the will of the people nationwide because the electoral vote winner may not have won a plurality of the national popular vote.
In fact, there are three cases in which that has happened: the elections of 1876, 1888 and most recently in 2000, when Al Gore won the national popular vote, but George W. Bush won the electoral vote and became president.
What it’s all about?
The Constitution gives the states considerable discretion in defining their own election laws, even for national elections. But all states are bound by the rules of the Electoral College during presidential elections.
At its core, the Electoral College comprises the aforementioned electors, the number of which is defined in Article II, Section 1, Clause 2 of the Constitution. The number of electors equals the number of members of the U.S. House and Senate any given state has. All states have two U.S. senators, but the number of representatives is based on a state’s population. The Constitution caps the total number of members of the House at 435 and gives each state two U.S. senators. That gives us 535 electors, plus three from the District of Columbia, for a total of 538 electors. To win the White House, a presidential candidate must win 270 electoral votes (half of the 538 plus 1).
The history of the Electoral College
At the Constitutional Convention, the Electoral College concept was conceived as a compromise, although the name “Electoral College” was not used until the 1800s.
Some members at the Convention thought that the people should directly elect the president by popular vote. Others believed that Congress should do so. The Founding Fathers decided on the “Connecticut” and “Three-Fifths” compromises, which comprise the basis for the Electoral College, among other things.
The Electoral College system has become increasingly controversial because in creating this complex electoral process, the Framers tossed in an inexplicable zinger that has been contentious since the Constitution was ratified. They did not require electors to vote for the winner of the popular vote in the state in which they cast their votes.
According to the National Archives and Records Administration (NARA) “There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States. Some States, however, require electors to cast their votes according to the popular vote. These pledges fall into two categories—electors bound by State law and those bound by pledges to political parties.”
The electors in the following states are free to vote as they like: Arizona, Arkansas, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah and West Virginia.
While it’s extremely rare, two electors have gone rogue in the past. One who should have voted for Gerald Ford in 1976 voted instead for Ronald Reagan, who wasn’t even a candidate. And, in 1988, an elector voted for Senator Lloyd Bentsen as president and Michael Dukakis as vice president. The Democrat ticket that year had been Dukakis for president and Bentsen as vice president, so it was flipped.
Choosing electors depends on the laws in each state. In some states, electors are nominated when the political parties hold their conventions. In other states, electors are selected by a party’s governing committee.
Among the nominees for electors are individuals who are party leaders, members of the state assembly, substantial party donors, people endorsing a candidate, dedicated volunteers, or those who have been active in promoting their party. Being elected is an honorary post acknowledging whatever a nominated elector may have done for their party.
Generally, if electors are nominated at a convention, the delegates vote for the electoral slate they want. If it’s by central party committee, they select by a majority committee vote.
But Maine and Nebraska break the conventional mold. Two electors are elected by popular vote in statewide elections. The remainder is elected in the congressional districts in both states. That means they could have a split slate.
In some states, an elector’s name may appear on the ballot below the name of the candidate on the ballot, so they can be identified. Voters can also get the names of electors from the Federal Register, which is explained below.
The slate of electors is recorded by the governors of each state on six copies of a “Certificate of Ascertainment.”
In December in the year of the election on the first Monday after the second Wednesday the slates of electors meet in each state to cast their votes for president. State legislatures often determine where the meeting takes place, but it’s usually in state capitol buildings. There the electors vote for both the president and vice president on two separate ballots. When all of the votes have been tallied they are placed on a “Certificate of Vote,” which lists all of the people receiving electoral votes.
In total, six original Certificates of Vote must be completed and signed by the electors, and the governor sends six Certificates of Ascertainment to the electors. The latter are attached to each of the six Certificates of Vote. The electors then certify and seal all of the certificates and verify that the votes on them are those of the electors’ state.
The rules involving the handling of the various certificates are stringent to eliminate any chance of alteration. The pairs of documents are sent by registered mail to different places: Two pairs go to the state’s Secretary of State; one pair goes to the president of the U.S. Senate (usually the sitting vice president or the president pro tem of the Senate, currently Senator Daniel K. Inouye D-HI); one pair goes to the chief judge of the district court of the federal district in which the electors met; and, two pairs are sent to the NARA where they go to the Archivist of the United States.
NARA matches the Certificates of Ascertainment from each state’s electors and the Certificates of Vote from the meetings of the electors in each state.
The Certificates of Vote are inspected by NARA to make certain that all 538 electoral votes are on them. Once it’s confirmed they are, the documents are then sent to Congress where they are unsealed and counted (see below). The results are announced, and the documents are then returned to NARA, which keeps them in their archives in perpetuity.
One certificate is placed in the Federal Register, where the public can inspect it.
The Twelfth Amendment specifies that electors must vote for both president and vice president, not just for president. In addition, it decrees that Congress must hold a joint session at 1:00 PM on January 6 in the year after the election. It is up to the members of the newly elected House to announce the winner of the electoral vote and thus the election.
In the event of a tie or the failure of any candidate to win the 270 votes, the House must vote for one of the top three electoral vote getters. But, not all members vote. Instead, there is one vote per state delegation. State delegations caucus and collectively decide who will get their one vote. To be elected president, one of the candidates must win 26 votes. If they fail to elect a president before inauguration day, the vice president becomes acting president until a president is elected.
The Senate is responsible for voting for vice president, but unlike the House, each senator can vote. The vice presidential candidate who wins 51 votes becomes the vice president elect.
All of this has significant relevance for the 2012 election. With talk of third party and independent bids, it is conceivable that neither candidate from the major parties will win 270 electoral votes, so we may see history in the making.
The electoral vote is why you won’t find presidential candidates making multiple visits to such states as Vermont. It has only three electoral votes (one member of the U.S. House of Representatives and two U.S. senators). Instead, candidates spend the most time in “swing states” that have a large number of electoral votes.
In the current political era, California, which has 55 electoral votes, and New York with 29, are both solid blue or primarily Democrat states, and thus they usually go to the Democrat candidate in a presidential election, giving he or she 84 electoral votes. That means that such swing states as Ohio, Virginia, Pennsylvania, Illinois, Florida and others become the focus of all presidential campaigns. Together, they comprise enough electoral votes to get a candidate to the 270 votes needed to win.
For this reason, electoral votes are the ultimate arbiters of an election, and it’s easy to understand why that brings some consternation after each presidential election. So, just why do we need the Electoral College if it denies us a truly democratic electoral system?
The answer is twofold: 1. The two major parties like it because their candidates can focus their strategies on the swing states, otherwise they’d have to visit every state; and 2. There’s a stalemate in Congress between those who are for it and those opposed. Thus, eliminating the Electoral College would require a constitutional amendment.
While many attempts to pass such an amendment have been made over the years, none has amassed the necessary number of votes to get it passed in Congress, where two-thirds majorities are needed. Dampening the amendment movement even more, poll taken to ascertain the support for an amendment showed that only 30 states approved. A total of 38 states (three-quarters) are needed to pass a constitutional amendment. So, it’s a tough row to hoe.
But a new proposal is circulating amongst the states now, and may provide a way to circumvent the need for an amendment. Under the National Popular Vote Interstate Compact, states agree that the electors within them must vote for the winner of the national popular vote, not the state popular vote. This would constitute what’s in essence a “direct election.”
So far, eight states and the District of Columbia have joined the compact: California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont and Washington state. The compact has 138 electoral votes in favor so far, but it must get 270 to be adopted. However, it is believed by many that Article II, Section 1, Clause 2 of the Constitution may require Congress to approve the compact before it could go into effect. In other words, for the time being, the Electoral College seems to be Teflon coated.
All of this aside, the Electoral College must be viewed through the prism of the form of government under which this nation was conceived, and what form it has taken since. After the Constitution became the law of the land, the United States was considered a republic, not a democracy. Defining the distinction between the two is not within the scope of this article, but the difference is important. That we have evolved into a democracy has changed the fundamental fabric of our electoral system, and it’s important to understand that even as a democracy, you’re not voting for a candidate directly when you vote for a presidential candidate, but rather indirectly by casting your vote for an elector who hopefully carries out your will.
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