Constitutional Topic: The Electoral College – The U.S. Constitution Online – USConstitution.net

Constitutional Topic: The Electoral College


The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
. This Topic Page concerns the Electoral College. The Electoral
College is embodied in the Constitution in Article
2, Section 1
, and in the 12th Amendment.

The Framers were wary of giving the people the power to directly elect the
President — some felt the citizenry too beholden to local interests, too
easily duped by promises or shenanigans, or simply because a national election,
in the time of oil lamps and quill pens, was just impractical. Some proposals
gave the power to the Congress, but this did not sit well with those who wanted
to see true separation of the branches of the new government. Still others felt
the state legislatures should decide, but this was thought to make the
President too beholden to state interests. The Electoral College, proposed by
James Wilson, was the compromise that the Constitutional Convention

Though the term is never used in the Constitution itself, the electors that
choose the President at each election are traditionally called a College. In
the context of the Constitution, the meaning of college is not that of
a school, but of a group of people organized toward a common goal.

The Electoral College insulates the election of the President from the
people by having the people elect not the person of the President, but the
person of an Elector who is pledged to vote for a specific person for
President. Though the ballot may read “John McCain” or “Barack Obama,” you’re
really voting for “John Smith” who is a McCain supporter or “Jack Jones” who is
an Obama supporter.

The function and details of how the Electoral College meets and how they
vote was changed in the 12th Amendment. First, a
discussion of the original plan, outlined in Article 2, Section 1, Clauses 2 and 3, then what
is different today:

Each state chose a number of electors equal to the number of congress people
that state had. Each state, then, got at least three electors (two Senators and
at least one Representative). Electors may not be an employee or elected
representative of the Federal Government. Each state was allowed to otherwise
choose whomever they wish to be the Electors for that state.

Today, Electors are chosen by popular election, but the Constitution does
not mandate a popular election. The 14th
does mention the choosing of Electors, but is relevant only when
Electors are elected by popular vote. There is similar mention in the 24th Amendment. In other words, Electors could be
appointed by a state’s legislature, or the legislature could empower the
governor to choose electors. In some cases, state law allows for such
appointments if the popular vote cannot be used to determine a winner, such as
if election results are contested up to federally-mandated deadlines.

Regardless of the method used to choose Electors, they all met, in their
states, on one day set by law. Each voted for two people, at least one of whom
was not a citizen of their state. Those votes were then counted, and a list of
each name and the number of votes was signed and certified and sent to the
President of the Senate. Then, in front of a joint session of Congress, the
President of the Senate opened the vote counts from each state. These were
totaled, and the President was the person with the most votes, if the count is
a majority. If there was a tie, then the members of the House of
Representatives immediately took a vote and that winner was the President.

If there was no tie, and no majority, then the top five vote-getters were
voted on by the House as above.

When the vote devolved to the House, two-thirds of all states must have had
at least one Representative present for the vote to proceed. The
Representatives present from each state voted as a single state. The winner had
to win by a majority of the states.

The Vice-President was a bit easier. In any case, that person who had the
second highest number of Electoral votes was Vice-President (if there was a
tie, the winner of the House vote was President; the loser was Vice-President).
If the second-highest vote count was shared by two or more people, the Senate
chose between those people.

Pretty complicated, right? The Framers thought for sure that they had
covered all their bases. But they did not foresee certain things, the most
important of which is the formation of political parties. For example, say each
state votes Republican, and every elector votes for George Bush for President
and Dick Cheney for Vice-President. When the votes are counted, Bush and Cheney
will have equal votes, throwing the election into the House, regardless of the
fact that the will of the Electors is, or should be, clear. Once in the House,
anything can happen.

Not plausible, you might think, but precisely this happened in the 1800
election of the Jefferson/Burr ticket. The ticket had the highest number of
Electoral votes, and because their electors wrote both Jefferson and Burr on
their ballots, there was a tie. The House was thrown into a fit, and it took 36
votes to finally elect Jefferson as President.

The 12th Amendment was ratified four years later to avert any recurrence of
these events. The 12th changes the Electoral process in a few small, but
important ways.

First, instead of voting for two people, Electors vote for a President and a
Vice-President. From there, the names are totaled at the state level, in two
columns this time (one for the President and one for the Vice President), and
sent along to the President of the Senate. Then, in joint session, all votes
are opened and counted, again in two columns. The person with the majority of
votes for President is then President. If there is no majority, then the top
three vote-getters are voted on by the House (with the same restrictions as
before). The choice must be made by January 20th (originally March 4th in the
12th Amendment, but altered by the 20th Amendment), or the Vice President
becomes the Acting President, until such time as the House can finally

The choice for Vice President moves along similarly, with the majority vote
getter becoming VP. If there is no majority, the top two vote-getters are voted
on by the Senate. In the case of the Senate, the Senators are not grouped by
state, though there must still be a two-thirds quorum to take the vote. Also
note that because only the top two vote-getters are placed in the mix, the
choice for Vice President should be an easier one. Also note that in the case
of a tie, the current Vice President, as President of the Senate, may cast a
vote for himself (if the current Vice President is running for

Today, the day of choosing the electors is set at the first Tuesday after
the first Monday in November, and the date the Electors meet is set at the
first Monday following the second Wednesday in December — in 2008, these
dates are November 4 and December 15. These dates are set in the US Code, at 3
USC 7.

In most states, the winner of the state election gets all of the state’s
electoral votes. In two states, Maine and Nebraska, however, the winner of the
state only gets two votes, one representing each Senator. The other electoral
votes are distributed according to the winner of each congressional district in
the state.

That’s the process. Electors are chosen by the states and the Electors
elect the President and Vice-President.

But, of course, there is much more to it than that, when the inconvenience
of details slip in. But that’s another topic.

The election of 2000, as did several elections
before it, called the wisdom of the Electoral College system into question.
Will there be changes to this uniquely American institution? The answer to
that question remains to be seen.

William Kimberling, Deputy Director of the Federal Election Commission,
wrote a very interesting treatise on the Electoral College, that includes lots
of great historical information and anecdotes about the College. The document
can be found on the FEC’s web
in Adobe Acrobat format.

The following site has an interesting Electoral College calculator (which
requires Java). Using it, it was interesting to note that with the current
census, a president can win by carrying only 11 states.

The Electoral College

Below are some other sites that concentrate on the Electoral College: