9 minute read

Electoral College

Further Readings

Nominated persons, known as electors, from the states and the District of Columbia, who meet every four years in their home state or district and cast ballots to choose the president and vice president of the United States.

In the popular election, the American people actually vote for electors, not for the candidates themselves. The candidate who receives the majority of votes from electors takes office. Although the Constitution allows the electors to vote for any candidate, they usually vote for the candidate of the political party that nominated them. In a limited number of instances, the structure of the Electoral College has led to unusual election results.

The republican basis of the Electoral College stems from the Constitution. When the founders of the United States set out to secure a system of political representation, many among them feared mob rule. Elections based on representative blocks of votes would implement checks within the system. The Framers took into consideration that large numbers of regional candidates could appeal to the interests of various select groups, and thus the populace could be divided widely, and disturbances in the succession of power could ensue. They surmised that Congress should have the power to settle issues that are not resolved in a popular election, and thus they created the Electoral College. As a contributor to this system, ALEXANDER HAMILTON said that it made sure "the office of President will seldom fall to the lot of any man who is not in eminent degree endowed with the requisite qualifications." Rogue politicians, riding any waves of popular sentiments, would need to meet a higher approval before their election. The Electoral College thus ensured an orderly transfer of power, especially in the two-party system that the United States developed.

Electors receive their appointments from a wide and various informal circuit of possible electoral candidates during election times and are nominated in many states according to the guidelines of individual state legislatures. The procedures for nominating electors, whether at party conventions, primary elections, or party organizational meetings, differ throughout the United States. The terms of electors are generally not set by statute, and in some states parties adopt their own criteria for selecting the college's members. However, the Constitution provides that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector" (U.S. Const. art. II, § 1, cl. 2).

In most states, only the names of the presidential and vice presidential candidates—not the names of the electors—appear on election ballots. The party that gains the most popular votes in a state receives one electoral vote for each of its electors. In each state, each party nominates the same number of electors as there are representatives and senators for that state in Congress.

On the first Monday after the second Wednesday in December following the popular election, the electors from each state's victorious party cast their ballots. The structure of the Electoral College was established in Article II, Section 1, of the U.S. Constitution. Under the original provision, each elector of the college cast two votes for president, and the candidate who received the second-highest number of votes assumed the vice presidency. In 1804, the TWELFTH AMENDMENT modified the original plan to separate the votes cast for the president and the vice president. The electors may choose to vote for another candidate—as West Virginia's electors did in the 1916 race between CHARLES EVANS HUGHES and WOODROW WILSON. However, this occurs only rarely, and even less often does it sway the results of an election. As the electoral system is designed, generally, all of the electoral votes from each state go to the winner of the state's popular vote. Only Maine does not use the winner-takes-all system; it uses the district plan (discussed below).

The electors sign, seal, and certify lists of their ballots. These lists go to Washington, D.C., where the president of the Senate, in the presence of the Senate and the House of Representatives, opens them. The votes are counted. If the electors fail to cast a majority vote, the House of Representatives chooses the U.S. president and vice president by ballot. In 1824, JOHN QUINCY ADAMS was chosen as president by the House. Although the recipient of the majority of the electoral votes is determined by the college, Congress retains the power of verifying the results and makes official the election of president and vice president.

Although the workings of the Electoral College have not gone unchallenged, significant challenges are infrequent. However, the 2000 presidential election between GEORGE W. BUSH and ALBERT GORE JR. inspired calls to reform or eliminate the national Electoral College. The election on November 7, 2000, was one of the closest in U.S. history, and several media organizations erroneously announced Gore as the predicted winner before the election booths had closed. Bush gained significant ground, and by the end of the evening on November 7, it appeared he had won the vote through the Electoral College, even though Gore likely had won the national popular vote.

The Electoral College consisted of 538 electors in 2000, one for each of the 435 members of the House of Representatives and 100 Senators, and three for the District of Columbia. According to the U.S. Office of the Federal Register, for the 2000 election, 26 states and the District of Columbia had laws in effect that bound their electors to vote for the same candidate as the majority of the general populace in that elector's state, and 24 did not. In most states, the presidential candidate who won the most popular votes then received all electoral votes from that state, referred to as the "winner-takes-all" feature. Only two states, Maine and Nebraska, allocated their electoral votes proportionally according to the popular vote.

On December 18, 2000 (the second Wednesday in December), the electors met in their respective states and went through the formality of casting their votes for the candidates from the party that elected them. Each state then reported its totals to Congress, utilizing "Certificates of Ascertainment," which list names of the electors and the number of votes received by each, and "Certificates of Votes," which list all persons voted for as president and vice president and the number of electors voting for each person.

The battle over the 2000 election focused on Florida's 25 electoral votes. Questions arose in several Florida counties about the accuracy of the election results from polls in those counties. Soon after the election, officials from the Florida counties began to call for a recount of the ballots. After about a month of litigation and tense national debate, the U.S. Supreme Court, in BUSH V. GORE, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), ordered a halt to the manual recounting. Florida is a "winner-takes-all" state, and the election potentially hinged upon the popular vote in a single county in that state. If a recount were to show that Gore had received more popular votes than Bush in Florida, Gore would have received the 25 votes and would have won the election.

In the months following the 2000 election, many states reconsidered their methods for appointing electors and also looked at instituting changes directed toward more control over electors' votes. One of the areas for potential reform has focused on the differences in the requirements that electors cast their ballots for the same candidate who garnered a majority of the vote in the general populace in that state. A second area is the "winner-takes-all" feature in the majority of states. Although a few states have introduced bills to modify their systems, calls for reform have died down significantly. At the federal level, no electoral reform has progressed through Congress since 1804, when adoption of the Twelfth Amendment required electors to specify separate candidates for president and vice-president. Any reform would likely occur at the state level rather than the federal level.

The 2000 election was certainly not the first to cause controversy. The presidential election of 1876 pitted Republican RUTHERFORD B. HAYES, a former governor of Ohio, against Democrat SAMUEL J. TILDEN, a former governor of New York. Reacting against the Reconstruction measures of Republicans in the South, Tilden received strong support from Southern Democrats. When the election returns came in on November 7, 1876, Tilden had clearly received the majority of the popular votes. However, Republicans determined that if they challenged the outcome of the voting in key areas of Florida, Louisiana, and South Carolina, Hayes could win. The Republicans sought victory at all costs and went all-out to claim the electoral votes from those states as their own.

The Republicans waged a publicity campaign through the national press, suppressing the tallies of the popular vote. Republican election committees managed to demonstrate that several key counties contained discrepancies in population figures, voter registration, and ballots cast. Democrats, for obvious reasons, contested the Republicans' tactics. The parties agreed to let an electoral commission, appointed by Congress, determine the winner of the disputed electoral votes. The commission consisted of 15 members from the Supreme Court, the House, and the Senate. In the end, a Republican justice, JOSEPH P. BRADLEY, swayed the outcome of the commission's findings. With less than 48 hours before Tilden's scheduled inauguration, the commission announced that Hayes had won the necessary electoral votes. On March 3, 1877, Hayes was inaugurated.

The results of the election posed issues for proponents and critics alike. Defenders of the electoral system claimed that the problems surrounding the 1876 election had less to do with the college than with political corruption. They maintained that the election could have resulted in a greater debacle if the constitutional structure of the college had not finally settled the contested issues. Critics countered that direct elections would fit the wishes of the people better than did what looked like oligarchic manipulations of the college.

In following years, critics added more ammunition to their attack with the election race between BENJAMIN HARRISON and GROVER CLEVELAND in 1888. With an unusual demographic breakdown of ballots, Harrison became president with the majority of electoral votes but with fewer popular votes than Cleveland. Throughout the next century, many wondered how such confused elections could take place.

Proposed alternatives to the current Electoral College system generally fall into three categories. In the first, the candidate with the most popular votes in a state would automatically receive those electoral votes. This system would eliminate independent voting among electors. In the second proposed alternative, a proportionality scheme, the breakdown of popular votes would correlate directly with the breakdown of electoral votes. This plan would abandon the winner-takes-all structure of the college. In the third alternative, the district plan used in Maine, individual congressional districts would be treated as representative of a single electoral vote, and the two electoral votes that each state receives for its two senators would go to the winner of the majority of the districts. To some advocates, there also exists a fourth option: abolishing the Electoral College altogether and letting a direct vote of the people determine who wins the offices of president and vice president.

Despite two controversial elections and occasional calls for change, the electoral system has more or less secured an extended series of peaceable transfers of power in the United States. Absent drastic changes in the political landscape, its role in selecting the U.S. president and vice president seems secure.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Doom to Embargo