Constitution Daily

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Explaining how the Electoral College works

August 29, 2016 by Scott Bomboy

 

This past week, a potential member of the Electoral College threatened to not vote for the GOP nominee this fall for President. Why is this potentially important and why does this group have such broad powers?

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Congress plays a critical role in the Electoral College process

On Thursday, Chris Suprun, a member of the college representing Texas, said he may not vote for Donald Trump five weeks after Election Day when the college’s votes are counted in Washington. Based on current polling, Trump is expected to win that state.

Although 29 states have laws that penalize “faithless electors” selected in November by voters, Texas is not one of those 29 states.

But why do we even have a body of electors directly choosing the President and not a direct election by voters? This goes back to the important debates at the 1787 Constitutional Convention in Philadelphia and a critical compromise.

There were at least four methods proposed to elect the President and Vice President in 1787 says the Congressional Research Service: election by Congress, election by state governors, election by state legislatures and direct election by voters. No one could agree on the best method, so a group called the Committee of Eleven on Postponed Matters invented the Electoral College.

The compromise made some states happy by letting the states pick the voting methods for “electors” who would meet as a group (or college) and cast their votes for President and Vice President several weeks after the general election. Each state got two electors for having Senators and the rest were equal to its membership in the House of Representatives. This gave some greater weight to smaller states and it also kept members of Congress from picking a President unless there wasn’t a clear winner.

The Electoral College compromise passed easily. Alexander Hamilton affirmed in Federalist 68 that “that if the manner of it be not perfect, it is at least excellent. It united in an eminent degree all the advantages the union of which was to be wished for.”

The Constitution’s Article II, Section 1 spelled out the basic Electoral College rules. A majority of electors was needed to elect a President; members of Congress or people holding a United States office could not be electors; electors couldn’t pick two candidates from their own state, and Congress determined when the electors would meet within their states.

The state Electoral Colleges’ sealed votes would be sent to the Vice President, acting as President of the Senate, where the envelopes would be opened in front of the members of Congress and counted. If there was a dispute over the final vote count at that time, the Senate and House would meet separately to decide the dispute. Both a majority of the House and Senate would need to agree to disqualify votes as submitted.

If there wasn’t a majority winner, the House would select a President and the Senate would choose a Vice President.

One flaw was exposed as soon as George Washington stopped running for President. The Constitution allowed each elector to cast two votes in the Presidential Electoral College contest, with the top vote-getter becoming President and the runner-up as Vice President. The Electoral College tie in 1800 between Thomas Jefferson and Aaron Burr led to the Constitution’s 12th Amendment, which required separate votes for each job.

In 57 Presidential elections, the final Electoral College vote has reflected the national popular choice in 53 elections. Only Andrew Jackson, Samuel Tilden, Grover Cleveland and Al Gore have received the most national popular votes in a Presidential election and lost in the Electoral College.

Today, the Electoral College mostly functions under the same rules as instituted after the 12thAmendment was ratified in 1804.

Political parties within states pick people to serve as electors, under rules approved by state legislatures. The 23rd Amendment changed the system by adding three electors for the District of Columbia, which isn’t a state and doesn’t have elected members of Congress. On Election Day, people vote for a Presidential and Vice Presidential candidate and a slate of electors that represents those candidates. (The names of the electors don’t appear on the ballot.)

The electors of each state convene, under current federal law, on the first Monday after the second Wednesday in December. (Any disputes within the states over electors must be resolved by December 13.)

They almost always meet in person at the state capital. This year, they meet on December 19. In 48 of 50 states, just the electors who represent the candidate with the most popular votes on Election Day each get to cast votes in the Electoral College election. (Maine and Nebraska split votes by congressional district.)

Each state group sends its endorsed, official vote count certificate to the Vice President (acting as President of the Senate), state officials, the federal court that had jurisdiction over the state capital area, and the federal Archivist. The vote certificates must be received in Washington by December 28.

The new federal Congress, usually on January 6, convenes for the official Electoral College vote count. The Vice President opens the vote certificates and passes them to four members of Congress, who count the votes. If there is a majority winner with at least 270 electoral votes and there are no objections filed by members of Congress, the Presidential election is certified and over. If there isn’t a majority winner, the election is sent to Congress to decide.

So what happens if an elector doesn’t vote for the candidate he or she was pledged to represent? States have the power to punish faithless electors with fines and possible jail time, but once certified votes are sent to Washington, it’s up to Congress to accept that vote.

There have been more than 150 faithless electors in Electoral College history for various reasons. In some cases, Vice Presidential candidates died between Election Day and the Electoral College voting date. In other cases, electors switched votes for various reasons.

In one case, back in 1968, Congress used its powers under federal law to decide the fate of a faithless electoral voter who voted for George Wallace instead of Richard Nixon. After objections were filed in the House and Senate, both bodies voted separately to accept the vote. In 2004, the House and Senate agreed to consider a dispute over Ohio’s certificate, and both groups approved the submitted certificate in separate votes.

Scott Bomboy is the editor in chief of the National Constitution Center.

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