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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 pages. 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 reached.

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 Amendment 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 agree.

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 re-election).

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 site 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 Calculator

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

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