Electoral College (United States)

Electoral votes by state/federal district, for the elections of 2004 and 2008

Electoral College map showing the results of the 2008 US presidential election. Senator Barack Obama (D-IL) won the popular vote in 28 states and the District of Columbia (denoted in blue) to capture 365 electoral votes. Senator John McCain (R-AZ) won the popular vote in 22 states (denoted in red) to capture 173 electoral votes. Nebraska split its electoral vote when Senator Obama won the electoral vote from Nebraska's 2nd congressional district; the state's other four electoral votes went to Senator McCain.

Cartogram representation of the Electoral College vote for the 2008 election, with each square representing one electoral vote.

The Electoral College consists of the popularly elected representatives (electors) who formally elect the President and Vice President of the United States. Since 1964, there have been 538 electors in each presidential election.^[1] Article II, Section 1, Clause 2 of the Constitution specifies how many electors each state is entitled to have and that each state's legislature decides how its electors are to be chosen. U.S. territories are not represented in the Electoral College. The Electoral College is an example of an indirect election.

The election for President and Vice President is not a direct election by United States citizens. Citizens vote for electors, representing a state, who are the authorized constitutional participants in a presidential election. In early U.S. history, some state laws delegated the choice of electors to the state legislature. Electors are free to vote for anyone eligible to be President, but in practice pledge to vote for specific candidates and voters cast ballots for favored presidential and vice presidential candidates by voting for correspondingly pledged electors.^[2][3]

The Twelfth Amendment provides for each elector to cast one vote for President and one vote for Vice President. It also specifies how a President and Vice President are elected. The Twenty-third Amendment specifies how many electors the District of Columbia is entitled to have.

Critics argue the Electoral College is inherently undemocratic and gives certain swing states disproportionate influence in selecting the President and Vice President. Proponents argue that the Electoral College is an important and distinguishing feature of federalism in the United States and protects the rights of smaller states. Numerous constitutional amendments have been introduced in the Congress seeking to alter the Electoral College or replace it with a direct popular vote; however, no proposal has ever passed the Congress.

Background

At the Constitutional Convention, the delegates used the Virginia Plan as the basis for discussions, as the Virginia delegation had proposed it first. The Virginia Plan called for the Executive to be elected by the Legislature.^[4] Delegates from a majority of states agreed to this mode of election.^[5] 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 was 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.^[6] Though some delegates preferred popular election, the Convention approved the Committee's proposal, with minor modifications, on September 6, 1787.^[7]

Origin of name

Although the United States Constitution refers to "Electors" or "electors", the name "Electoral College" — or any other name — is never used to describe the collective vote of the electors. It was not until the early 1800s 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."^[8]

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. Unlike the present system, each elector voted for two people for President, rather than one vote for President and one vote for Vice President. To become President, a candidate had to have more votes than any other and must have received votes from a majority of the electors. After the choosing of the President, the person with the most electoral votes among the remaining candidates would become the Vice President. If no one received a majority of the votes, the decision would be made by the House of Representatives.

The design of the Electoral College was based upon several assumptions and anticipations of the Framers of the Constitution:

1. Each state would employ the district system of allocating electors.
2. Each presidential elector would exercise independent judgment when voting.
3. Candidates would not pair together on the same ticket with assumed placements toward each office of President and Vice President.
4. The system as designed would rarely produce a winner, thus sending the election to Congress.^[9]

On these facts, scholars have described the intended role of the Electoral College as simply a body that would nominate candidates from which the Congress would then select a President and Vice President.^[10]

Under the original plan for the Electoral College, each state government was free to have its own plan for selecting its electors. Several different methods emerged and 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, the winner of the election was John Adams, a member of the Federalist Party. The runner up, and therefore the new Vice President, was Thomas Jefferson of the opposition Democratic-Republican Party.

In 1800, the candidates of the Democratic-Republican Party (Jefferson for President and Aaron Burr for Vice President) each tied for first place. However, since all electoral votes were for President, Burr's votes were technically for him being President even though he was his party's second choice. Jefferson was so hated by Federalists that the party members sitting in the lame duck Congress tried to elect Burr. The Congress 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). Only after Federalist Party leader Alexander Hamilton—who disliked Burr much more than Jefferson—made known his preference for Jefferson was the issue resolved on the 36th ballot.

In response to those elections, the Congress proposed the Twelfth Amendment—with electors casting one vote for President and one vote for Vice President—to replace the system outlined in Article II, Section 1, Clause 3. The Twelfth Amendment was proposed in 1803 and was adopted in 1804.

However, Congress has not passed any major plan to change or abolish the Electoral College. Gary Bugh in Electoral College Reform identifies the hundreds of proposals made in Congress for the automatic, district, proportional, and direct election plans.^[11] He estimates that members of Congress have introduced over 700 constitutional amendments to reform or eliminate the Electoral College since the founding.^[12] Bugh also draws attention to the extraordinarily low numbers of these plans made over the last three decades, including after the troubling 2000 election.^[13]

The Bayh-Celler Amendment

The closest the country has ever come to abolishing the Electoral College occurred during the 91st Congress.^[14] The presidential election of 1968 had ended with Richard Nixon receiving 301 electoral votes to Hubert Humphrey's 191. Yet, Nixon had only received 511,944 more popular votes than Humphrey, equating to less than 1% of the national total. George Wallace received the remaining 46 electoral votes with only 13.5% of the popular vote.^[15]

Representative Emanuel Celler, Chairman of the US House of Representative's Judiciary Committee responded to public concerns over the disparity between the popular vote and electoral vote by introducing House Joint Resolution 681, an Amendment to the United States Constitution which would have abolished the Electoral College and replaced it with a system wherein the pair of candidates who won at least 40% of the national popular vote would win the Presidency and Vice Presidency respectively. 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."^[16]

On April 29, 1969, the House Judiciary Committee voted favorably, 28–6, to approve the Amendment.^[17] Debate on the proposed Amendment before the full House of Representatives ended on September 11, 1969^[18] and was eventually passed with bipartisan support on September 18, 1969, being approved by a vote of 339 to 70.^[19]

On September 30, 1969, President Richard Nixon gave his endorsement for adoption of the proposal, encouraging the Senate to pass its version of the Amendment which had been sponsored as Senate Joint Resolution 1, by Senator Birch Bayh.^[20]

In its October 8, 1969 edition, the New York Times reported that the legislatures of 30 states 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 passage. The paper also reported that 6 other states had yet to state a preference, 6 were leaning toward opposition and 8 were solidly opposed.^[21]

On August 14, 1970, the Senate Judiciary Committee sent its report advocating passage of the Amendment 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 would indicate that supporters of the measure were about a dozen votes shy from the 67 needed for the Amendment to pass the full Senate. He called upon President Nixon to attempt to persuade undecided Republican Senators to support the plan.^[22] However, Nixon, while not reneging on his previous endorsement, chose not to make any further personal appeals to back the legislation.^[23]

Open debate on the Amendment finally reached the Senate floor on Tuesday, September 8, 1970,^[24] but was quickly faced with a filibuster. The lead objectors to the Amendment 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.^[23]

On September 17, 1970, a motion for cloture, which would have ended the filibuster, failed to receive the 67 votes, or two-thirds of those Senators voting, necessary to pass.^[25] The vote was 54 to 36 in favor of the motion.^[23] A second motion for cloture was held on September 29, 1970, this time failing 53 to 34, or five votes short of the required two-thirds. Thereafter, the Senate Majority Leader, Mike Mansfield of Montana, moved to lay the Amendment aside so that the Senate could attend to other business.^[26] However, the Amendment was never considered again and died when the 91st Congress officially ended on January 3, 1971.

Modern Electoral College mechanics

The constitutional theory behind the indirect election of both the President and Vice President of the United States is that while the Congress is popularly elected by the people,^[27] the President and Vice President are elected to be executives of a federation of independent states.

In the Federalist No. 39, James Madison argued that the Constitution was designed to be a mixture of state-based and population-based government. The 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.^[28]

Additionally, in the Federalist No. 10, James Madison argued against "an interested and overbearing majority" and the "mischiefs 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.^[29]

Summary

Presidential electors are selected on a state-by-state basis, as determined by the laws of each state. Generally, (with Maine and Nebraska being the exceptions) each state appoints its electors on a winner-take-all basis, based on the statewide popular vote on Election Day. Although ballots list the names of the presidential candidates, voters within the 50 states and Washington, D.C. actually choose electors for their state when they vote for President and Vice President. These presidential electors in turn cast electoral votes for those two offices. Even though the aggregate national popular vote is calculated by state officials and media organizations, the national popular vote is not the basis for electing a President or Vice President.

A candidate must receive an absolute majority of electoral votes (currently 270) to win the Presidency. If no candidate receives a majority in the election for President, or Vice President, that election is determined via a contingency procedure in the Twelfth Amendment, which is explained in detail below.

Apportionment of electors

The size of the Electoral College is equal to the total membership of both Houses of Congress (435 Representatives and 100 Senators) plus the three electors allocated to Washington, D.C., totaling 538 electors.

Each state is allocated as many electors as it has Representatives and Senators in the United States Congress.^[30][31] Since the most populous states have the most seats in the House of Representatives, they also have the most electors. The six states with the most electors are California (55), Texas (34), New York (31), Florida (27), Illinois (21) and Pennsylvania (21). The seven smallest states by population—Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming—have three electors each. The number of Representatives for each state is determined decennially by the United States Census, thus determining the number of electoral votes for each state until the next Census reallocation.

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 (Wyoming) has three electors; thus, D.C. cannot have more than three electors. Even if D.C. were a state, its current population would entitle it to three electors; based on its population per electoral vote, D.C. has the second highest per-capita Electoral College representation, after Wyoming.^[32]

Nomination of electors

Candidates for elector are nominated by their state political parties in the months prior to Election Day. The Constitution delegates to each state the authority for nominating and choosing its electors. In some states, the electors are nominated in primaries, the same way that other candidates are nominated. Other states, such as Oklahoma, Virginia, and North Carolina nominate electors in party conventions. In Pennsylvania, the campaign committees of each candidate name their candidates for presidential elector (an attempt to discourage faithless electors).

Disqualification of electors

Under Article II, Section 1, Clause 2 of the United States Constitution, no person holding a federal office, either elected or appointed, may become an elector.^[33] 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 has then later rebelled against the United States, is barred from serving in the Electoral College. However, the Congress may remove this disability by a two-thirds vote in each House.

Election Day

Federal law sets the Tuesday following the first Monday in November as the day for holding federal elections.^[34]

Each state's legislature determines how its electors are to be chosen.^[35] Currently, all states choose electors by popular election on the date specified by federal law. Forty eight states, and Washington, D.C., employ the winner-takes-all method, each awarding its electors as a single bloc. Two states, Maine and Nebraska, select one elector within each congressional district by popular vote, and additionally select the remaining two electors by the aggregate, statewide popular vote. This method has been used in Maine since 1972 and in Nebraska since 1992.

The current system of choosing electors is called the "short ballot." In all states, voters choose among slates of candidates for the associated elector; only a few states list the names of the electors on the ballot. In some states, if a voter wishes to write in a candidate for President, the voter also is required to write-in the names of candidates for elector.

Meetings of electors

Certificate for the electoral vote for Rutherford B. Hayes and William A. Wheeler for the State of Louisiana

Electors chosen on Election Day meet in their respective state capitals (or in the case of Washington, D.C., 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.^[36][37][38]

The Electoral College never meets as one body. 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 each 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. Those present answer to their name, and they then fill any vacancies in their number. 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.

After the voting is complete, the electors complete the Certificate of Vote. This document states the number of electoral votes cast for President and Vice President and who received those votes. The state election official usually has pre-printed forms ready and the tellers usually only write down the number of votes cast for appropriate candidates. Five copies of the Certificate of Vote are completed and signed by each elector. Multiple copies of the Certificate of Vote are signed, in order to provide multiple originals in case one is lost. One copy is sent to the President of the U.S. Senate (the sitting Vice President of the United States) by certified mail.

A staff member of the Vice President 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 Washington, D.C.) are placed in one box and Montana through Wyoming are placed in the other box.

Faithless electors

A faithless elector is one who casts an electoral vote for someone other than the person pledged, including one who refuses to vote for any candidate. There are laws to punish faithless electors in 24 states. 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 states may only punish a faithless elector after-the-fact, some such as Michigan specify that his or her vote shall be canceled.^[39]

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.^[40] 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.^[41] The session is ordinarily required to take place on January 6 in the calendar year immediately following the meetings of the presidential electors.^[42]

The meeting is held at 1:00 p.m. in the Chamber of the U.S. House of Representatives.^[42] 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 supported by at least one member of each house of Congress. A successful objection will be followed by debate; however, objections to the electoral vote count are rarely raised, although it did occur during the vote count in 2001 after the remarkably close Presidential Election in 2000 between Governor George W. Bush of Texas and the Vice President of the United States, Al Gore. Vice President Gore, who ironically as Vice President was required to preside over his own Electoral College defeat (by only a few electoral votes), denied the objections, all of which would have favored his candidacy. If there are no objections, the presiding officer declares the result of the vote and, if applicable, states who is elected President and Vice President. The Senators then depart from the House Chamber.

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 - its members have a single vote collectively (and the District of Columbia does not receive a vote). A candidate must receive an absolute majority of state delegation votes (currently 26) 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: once under Article II, Section 1, Clause 3 (in 1801) and once under the Twelfth Amendment (in 1825).

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.^[43] Further, the language requiring an absolute majority of Senate votes precludes the sitting Vice President from breaking any tie which might occur,^[44] although this is disputed by some legal scholars.^[45]

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..." (Johnson won) ^[46]

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 should select a President. If the winner of the vice presidential election is also not known by then, then under the Presidential Succession Act of 1947, the sitting Speaker of the House would become Acting President until either the House should select a President or the Senate should select a Vice President. None 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 was entitled during the 2004 and 2008 presidential elections:^[47][48]

* Washington, D.C., although not a state, is granted three electoral votes by the Twenty-third Amendment.

** Maine and Nebraska electors distributed by way of the Congressional District Method.

Alternative methods of choosing electors

Before the advent of the short ballot in the early twentieth 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."^[50]

Appointment by state legislature

An early method of choosing electors was selection by the state legislature. A majority of the states legislatively selected presidential electors in both 1792 and 1800, and half of the states did so in 1812.^[51] One reason most U.S. history textbooks don't start reporting the national aggregate popular vote until the election of 1824 is because more than a quarter of all the states used legislative choice in all prior elections; there simply was no popular vote for President in those states. Even in 1824, when Andrew Jackson lost in spite of having pluralities of both the popular and electoral votes, a full quarter of the states (6 of 24) did not hold popular elections for President and Vice President;^[52] instead, those six state legislatures choose the electors that year. By 1828, only Delaware and South Carolina continued to use legislative choice.^[52] Delaware ended its practice the following election (1832), while South Carolina held on to legislative choice until it became the first state to secede in December 1860.^[52]

Legislative appointment made four more appearances on the electoral stage:

• 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.^[53]
• In 1864, Nevada, having joined the Union only a few days prior to Election Day, had no choice but to appoint.^[53]
• In 1868, the newly reconstructed state of Florida appointed its electors, having been readmitted too late to hold elections.^[53]
• 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.^[53]

Legislative appointment was also 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 deadline for choosing electors.^[54]

The Constitution gives the power to the state legislatures to decide how electors are chosen^[52] 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. In fact, this is precisely what happened to New York in 1789 when the legislature failed to appoint any electors.^[55]

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 such, the electoral districts could not mirror the layout of the state's congressional districts. As with congressional districts, moreover, this method is vulnerable to gerrymandering.

All states had discarded this method of elector selection after 1832. However, this method reappeared in Michigan for the 1892 election.^[53] Before the election, the Democratic Party had gained control of Michigan's state legislature and changed the method used from at-large popular voting to electoral district voting in order to capture at least a portion of the state's electoral votes (at the time, Michigan tended to vote Republican).^[53] The plan worked, and Michigan split its vote: nine votes for Republican Benjamin Harrison and five votes for Democrat Grover Cleveland. Once the Republican party regained control of the state legislature, the method of elector selection was switched back to at-large popular voting.^[53]

Congressional District Method

The Congressional District Method (a.k.a., Maine-Nebraska Method) is an alternative way of distributing electoral votes within a state. In a winner-takes-all system, the winner of the statewide popular vote receives all of that state’s electoral votes. Under the Congressional District Method, the electoral votes are distributed based on the popular vote winner within each of the state’s individual congressional districts; the statewide popular vote winner receives two additional electoral votes.^[56]

The number of electoral votes allocated to each state is equal to the number of representatives the state has in the Congress.^[57] The two statewide-winner electoral votes are held to be equivalent to the two votes each state receives in the U.S. Senate. The districtwide-winner electoral votes are equivalent to that district's vote in the House of Representatives.

Currently, only Maine and Nebraska use the Congressional District Method for distributing their electoral votes. Maine has four electoral votes based on its two Representatives and two Senators. In Nebraska there are two Senators and three Representatives, giving it five electoral votes.^[58] Maine began its use of the Congressional District Method in the election of 1972. Nebraska has used the Congressional District Method since the election of 1992.^[59][60] A recent call has been made by Nebraska Republicans to discard the Congressional District Method and return to the winner-takes-all system.^[61] Such previous calls for reform failed in the late 1990s.^[61] In January 2010 a bill was introduced in the Nebraska legislature to revert to a winner-take-all system.^[62]

The Congressional District Method allows for the chance for states to split their electoral vote between multiple candidates. Before 2008, neither Maine nor Nebraska had ever split their electoral votes.^[56] 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.^[63]

The Congressional District Method more closely reflects the one man, one vote principle than the current winner-takes-all system because an individual's vote has a larger weight to it.^[64] In addition, the Congressional District Method can be more easily implemented than other alternatives to the winner-takes-all method. Each state need only pass legislation in order to use this method, instead of having to pass a constitutional amendment like some other Electoral College reform options.^[64] However, the Congressional District Method has its downsides. For instance, 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.^[65]

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.^[66]

Contemporary conflict over the Electoral College

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.^[67]

Criticisms of the Electoral College

This graphic demonstrates how the winner of the popular vote can still lose in a hypothetical electoral college system.

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.

Population per Elector allocated to each of the 50 states and DC, ranked by population. For instance, 1=California, 2=Texas, 50=DC and 51=Wyoming.

Population per U.S. Representative allocated to each of the 50 states and DC, ranked by population. Since DC (ranked 50) receives no seats in the House, its bar is absent.

Irrelevancy of national popular vote

The elections of 1876, 1888 and 2000 produced an Electoral College winner who did not receive the 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 thus could be considered distinct from the latter three elections in which all of the states had popular selection of electors.^[68]

Opponents of the Electoral College claim that such outcomes do not logically follow the normative concept of how a democratic system should function. 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 with the exception of Maine and Nebraska. Allocation of electors in proportion to the state's popular vote would 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. Given the allocation of electors in 2000, it is possible a candidate could win with only a small margin of support in the 11 largest states. In such an example, 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. Claims that the Electoral College suppresses the "popular will" are therefore open to debate.

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.

Focus on large swing states

Most states use a winner-take-all system, in which the candidate with the most votes in that state receives all of the state's electoral votes. This gives candidates an incentive to pay the most attention to states without a clear favorite, such as Pennsylvania, Ohio, and Florida. For example, California, Texas, and New York, in spite of having the largest populations, have in recent elections been considered safe for a particular party (Democratic for California and New York; Republican for Texas), and therefore candidates typically devote relatively few resources, in both time and money, to such 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 (34), New York (31), Florida (27), Illinois (21), Pennsylvania (21), Ohio (20), Michigan (17), Georgia (15), New Jersey (15), and North Carolina (15), that ticket would have 271 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 simply shift the disproportionate focus to large cities at the expense of rural areas.^[69] 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. Whether such developments would be good or bad is a matter of normative political theory and political interests of the voters in question.

Discourages turnout and participation

Except in the few closely fought swing states, it does not matter how many people turn out to vote. The Electoral College eliminates any advantage to a political party or campaign for encouraging voters to turn out, except in those swing states.^[70] 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.^[71] Individuals would similarly have a strong 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.^[70]

Allows states to disenfranchise citizens without penalty

If a state makes it harder for its citizens to vote, whether by making voting more difficult, or by legally disfranchising some citizens (such as those convicted of felonies) from voting, and turnout in the state is reduced as a result, the Electoral College insulates the state from being penalized. In fact, legal scholars Akhil Amar and Vikram Amar point out that the original compromise of the Electoral College was largely due to this very fact. Direct national election of the President (which was proposed by a delegate from Pennsylvania) would have enabled the North to outvote the South, because "the South would get no credit for its half-million slaves, none of whom, of course, would be able to vote. The electoral college system that ultimately emerged gave the South partial—three-fifths—credit for its slaves."^[72] The states were thus allowed to disfranchise large numbers of citizens while maintaining the same influence in the Electoral College. Akhil and Vikram Amar note, "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."^[72]

The Electoral College continues to insulate states from losing any influence when they disfranchise or suppress the votes of their citizens, whether through voter suppression, through making it more difficult or expensive to vote, or through actually taking away some citizens' votes by law. "Even today, 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."^[72]

Favors less populous states

As a consequence of giving more per capita voting power to the less populated states, the Electoral College gives disproportionate power to those states' interests. Democrats often assert that the Electoral College system favors the Republican Party by disproportionately boosting the electoral weight of the less populous states, which have tended historically to vote Republican. In fact, on all three occasions that the electoral vote winner and popular vote winner has been different, the Republican party won the election. While this argument does apply to the 2000 election, it is debatable whether it helps to explain the 1876 and 1888 results, since in these cases the small states were more evenly divided.

In one countervailing analysis, 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.^[73] 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.^[74]

Disadvantage for third parties

In practice, the winner-take-all manner of allocating a state's electors generally decreases the importance of minor parties.^[75]

Arguments supporting the Electoral College

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 much wider appeal than they would if they simply had to win the national popular vote.^[76]

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.^[77]

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.^[78]

Enhances status of minority groups

Far from 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.^[77]

Encourages stability through the two-party system

Many proponents of the Electoral College see its negative effect on third parties as a good thing. They argue that the two party system has provided stability through its ability to change 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 from across the entire nation.

Death or legally defined disability of electors

The Constitution grants each state the right to appoint electors in a manner chosen by that state. While it is common to think of the electoral votes impersonally, as mere numbers, the Electoral College is in fact made up of real people (usually party regulars of the party whose candidate wins each state) with the capacity to adapt to unusual situations. That capacity might be particularly important if, for example, a candidate were to die or become in some other way legally disabled or disqualified to serve as President or Vice President. Advocates of the current system argue that these electors could then choose a suitable replacement (who would most likely come from the same party of the candidate who won the election) more competently than could the general voting public. Furthermore, the time period during which such a death or the onset of such a legal disability or disqualification might call for such an adaptation extends, under the Electoral College system, from before Election Day (many states cannot change ballots at a late stage) until the day the electors vote (the first Monday after the second Wednesday of December). Thus, until the electors cast their votes, it is not a federal issue, per se, but a state's rights issue and state laws (should) regulate the situation. In Virginia, for instance, the law clearly states that the electors must vote for the name of the candidate whom they represent on the ballot, and therefore these electors are not able to adapt to unusual situations, unless they are willing to violate the law, and suffer the penalties for so doing.

In the election of 1872, Democratic candidate Horace Greeley did in fact die before the meeting of the Electoral College, resulting in Democratic disarray; the electors who were to have voted for Greeley split their votes across several candidates, including three votes cast for the deceased Greeley. However, President Ulysses S. Grant, the Republican incumbent, had already won an absolute majority of electors. Because it was the death of a losing candidate, there was no pressure to agree on a replacement candidate. There has never been a case of a candidate of the winning party dying.

In the election of 1912, after the Republicans had renominated President Taft and Vice President Sherman, Sherman died shortly before the election, too late to change the names on the ballot, thus causing Sherman to be listed posthumously. That ticket finished third behind the Democrats (Woodrow Wilson) and the Progressives (Theodore Roosevelt), and the 8 electoral votes that Sherman would have received were cast 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.^[79]

Encapsulation of election system

The Electoral College allows for each state to conduct elections using whatever methods it chooses (i.e. voting system, vote-recording technology) without affecting other states. A national popular vote, by definition, requires all states to use plurality voting and would likely lead to national election rules and standards.

Neutralizes turnout disparities between states

There are factors that affect the turnout around the country. Weather can vary greatly across a large nation, rain or winter storms can impact voter participation in affected states. In addition, when a state has another high profile contest, such as a hotly contested Senate or gubernatorial race, turnout in that state can be affected. Because the allocation of electoral votes is independent of each state's turnout, the Electoral College neutralizes the effect of all such turnout disparities between states.

Maintains separation of powers

The Constitution separated government into three branches that check each other to minimize threats to liberty and encourage deliberation of governmental acts. Under the original framework, only members of the House of Representatives were directly elected by the people, with members of the Senate chosen by state legislatures, the President by the Electoral College, and the judiciary by the President and the Senate. The President was not directly elected in part due to fears that he could assert a national popular mandate that would undermine the legitimacy of the other branches, and potentially result in tyranny.

National Popular Vote Interstate Compact

This proposal calls for an interstate compact whereby individual states agree to allocate their electors to the winner of the national popular vote. The state legislatures of the joining states would then establish a direct election, thereby effectively circumventing the Electoral College, when they collectively have a majority (at least 270) of the electoral votes. The proposal is still 209 electoral votes short of going into effect.

The proposal centers on Article II, Section 1, Clause 2 of the Constitution, which gives each state legislature the authority to determine how its state's electors are to be chosen. Many partial versions of this plan have emerged over the years.

While each state has plenary power to determine how it chooses its electors, it is unclear whether Article I, Section 10, Clause 3 of the Constitution requires the Congress' consent before this compact can take effect.

Five states have joined the compact. The first was Maryland, when Governor Martin O'Malley signed the bill into law on April 10, 2007.^[80] New Jersey joined on January 13, 2008, despite objections from Republicans who criticized the bill as undermining federal elections.^[81] Illinois passed the law on April 7, 2008.^[82] Hawaii joined on May 1, when the legislature overrode a veto from Governor Linda Lingle.^[83] On April 28, 2009, the State of Washington joined, when Governor Christine Gregoire signed HB 1598.^[84]

The Massachusetts Senate passed a bill which would make its state the sixth to join the compact on July 27, 2010. Governor Deval Patrick signed it into law on August 4.^[85]

See also

• Electoral college
• Electoral vote changes between United States presidential elections
• Every Vote Counts Amendment
• List of U.S. states by population
• National Popular Vote Interstate Compact
• United States presidential election
• United States presidential election maps
• List of United States presidential electors, 2008
• FiveThirtyEight.com

Notes

External links

• U.S. Electoral College FAQ (www.archives.gov)
• Historical Documents on the Electoral College
• Electoral Vote
• A New Nation Votes: American Election Returns 1787-1825
• FiveThirtyEight: Electoral Projections Done Right
• 270 to win
• Winning The Electoral College
• Electoral Map Calculator
• PredictNovember.com
• "Math Against Tyranny"
• H.J.RES.4 (proposed constitutional amendment to replace Electoral College with direct popular election of President and Vice President)
• The Green Papers: More detailed description of reform proposals
• The Electoral College: How It Works in Contemporary Presidential Elections
• Office of the Federal Register
• Joint Session of the 111th Congress for the purpose of certifying the Electoral College ballot count, January 9, 2009 (C-Span video)
• Introductory chapter of Electoral College Reform: Challenges and Possibilities

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