The United States Electoral College is a term used to describe the 538 Presidential Electors who meet every 4 years to cast the electoral votes for President and Vice President of the United States. The Presidential Electors are elected by the popular vote on the day traditionally called election day. Presidential Electors meet in their respective state capitol buildings (or in the District of Columbia) on the first Monday after the second Wednesday in December (per 3 U.S.C.  § 7), never as a national body. At the 51 meetings, held on the same day, the Electors cast the electoral votes. As such, the collectivity of the 51 groups is the technical definition of the college, despite never convening together. The electoral college system, like the national convention, is an indirect element in the process of electing the president.

The original mechanics of presidential elections were established by Article II, Section 1, Clause 3 of the United States Constitution. The Twelfth Amendment revised those mechanics, including that each Elector vote separately for President and Vice President. Today, the mechanics of the Presidential election are administered by the National Archives and Records Administration via its Office of the Federal Register.

Electors are chosen in a series of state elections held on the same day (election day). The number of electoral votes of each state is the sum of its number of U.S. Senators (always two) and its U.S. Representatives; the District of Columbia has the same number of votes it would if it had Senators and Representatives (currently three). ^[1] In each state, voters vote for a slate of pre-selected candidates for Presidential Elector, representing the various candidates for President. State ballots, however, are designed to suggest that the voters are voting for actual candidates for President. Most states use what is termed the short ballot, in which a vote for one party (such as Democratic or Republican) is interpreted as a vote for the entire slate of Presidential Electors. In these states, with rare exceptions, one party wins the entire electoral vote of the state (by either plurality or majority). Maine and Nebraska choose Presidential Electors using what is termed the District Method, which makes it possible for the voters to choose Electors of different political parties and split the electoral vote of these two states.

The Presidential Electors of each state (and DC) meet 41 days following the popular vote to cast the electoral votes. The Electors ballot first for President, then for Vice President. On rare occasions, an Elector does not cast the electoral vote for the party's national ticket, usually as a political statement; these people are called faithless Electors. Each Elector signs a document entitled the Certificate of Vote which sets forth the electoral vote of the state (or DC). One original Certificate of Vote is sent by certified mail to the Office of the Vice President.

One month following the casting of the electoral votes, the U.S. Congress meets in joint session to declare the winner of the election. If a candidate for President receives the vote of 270 or more Presidential Electors, the presiding officer (usually the sitting Vice President) declares that candidate to be the President-elect, and a candidate for vice president receiving 270 or more electoral votes is similarly declared to be the Vice President-elect.

The nature of the process and its complication have been critiqued, with its detractors raising several alternative means of electing the president. This issue was revisited following the Presidential Election of 2000 when Democratic candidate Al Gore received the plurality of the national vote, but failed to win the majority of the Electoral College. Advocates of the current system have similarly set forth arguments for its advantages.

Electoral College mechanics

The election of the leader of the United States and the Vice President of the United States is indirect. Presidential electors are selected on a state by state basis as determined by the laws of each state. Currently each state uses the popular vote on Election Day to appoint electors. Although ballots list the names of the presidential candidates, voters within the 50 states and the District of Columbia are actually choosing Electors from their state when they vote for President and Vice President. These Presidential Electors in turn cast the official (electoral) votes for those two offices. Although the nationwide popular vote is calculated by official and media organizations, it does not determine the winner of the election.

Apportionment of electors

The present allotment of electors by state is shown in the article List of U.S. states by population.

The size of the electoral college has been set at 538 with 535 corresponding to the size of the United States Congress, plus 3 that represent D.C. since the election of 1964. Each state is allocated as many electors as it has Representatives and Senators in the United States Congress. Since the most populous states have the most seats in congress, they also have the most electors. The states with the most are California (55), followed by Texas (34) and New York (31). The smallest states by population, Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming, have three electors each. Because the number of representatives for each state is determined decennially by the United States Census, the electoral votes for each state are also determined by the Census every ten years. The number of electors is equal to the total membership of both Houses of Congress (100 Senators and 435 Representatives) plus the 3 electors allocated to the District of Columbia, totaling 538 electors. A candidate must receive a majority of votes from the electoral college (currently 270) to win the Presidency. If in either election for President or Vice-President no one receives a majority, the election is determined by Congress (the House votes for presidential candidates, and the Senate votes for vice presidential candidates).

Under the 23rd Amendment, the District of Columbia is allocated as many Electors as it would have if it were a state, except that it cannot have more Electors than the least populous state. The least populous state (currently Wyoming) has 3 Electors, so the District cannot have more than 3 Electors. However, without this restriction, the population of the District of Columbia would still entitle it to only 3 electors. In fact, based on its population per electoral vote, the District of Columbia is the second most highly represented portion of the electorate, after Wyoming. ^[2]

Nomination of electors

Potential elector candidates are nominated by their state political parties in the summer before the Election Day. The U.S. Constitution allows each state to choose its own means for the nomination of 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 the candidates name their candidates for Presidential Elector (an attempt to discourage faithless Electors). All states require the names of all Electors to be filed with the Secretary of State (or equivalent) at least a month prior to election day.

Disqualification of electors

Under Article II of the US Constitution, no persons holding a federal office, either elected or appointed, may become electors (an error made, but corrected, before both the 2000 and 2004 elections). ^[3]

Also, under Section 3 of the Fourteenth Amendment, any person who has sworn an oath to support the 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. Congress may remove this disability by two-thirds vote in both Houses, however.

States not using winner-takes-all

Two states do not elect their Presidential Electors as an indivisible bloc. Maine and Nebraska elect two electors by a statewide ballot and choose their remaining Electors by congressional district. The method has been used in Maine since 1972 and Nebraska since 1992, though neither has ever split its electoral votes in any subsequent elections.

Meetings of electors

Electors meet in their respective state capitals (or in the case of DC, in Washington) on the first Monday after the second Wednesday in December, at which time they cast their electoral votes on separate ballots for President and Vice President. The electors pledged to a particular candidate are formally chosen in the popular election held on the first Tuesday following the first Monday in November. That is, while many people believe they are voting for a particular candidate on Election Day in November, they are, in fact, casting a vote for that candidate's electors.

The electoral college never meets as one body. The constitutional theory is that the Congress is elected by the people, while the President and Vice President are elected by the states. Although the procedure in each state varies slightly, the Electors generally follow a similar series of steps and the Congress has constitutional authority to regulate what the states do. The meeting is opened by the election certification official (often the secretary of state), who reads the Certificate of Ascertainment - the document setting 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 with a vice chairman also. The Electors sometimes choose a Secretary, often not 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. 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 President of the U.S. Senate (the sitting Vice President of the United States) by certified mail.

A staff member of the Office of the Vice President (here, acting in his capacity as President of the Senate) collects the Certificates of Vote as they arrive and prepares them for the joint session of Congress. The Certificates are arranged in alphabetical order and placed in two special mahogany boxes. The states Alabama through Missouri (including DC) are placed in one box, and the states Montana through Wyoming are placed in the second box.

Faithless electors

A faithless elector is one who casts an electoral vote for someone other than whom they have pledged to elect, or who refuses to vote for any candidate. On 158 occasions, electors have not cast their votes for president or vice president to whom they were pledged. Of those, 71 votes were changed because the original candidate died before the elector was able to cast a vote. Two votes were not cast at all when electors chose to abstain from casting their electoral vote for any candidate. The remaining 85 were changed by the elector's personal interest or perhaps by accident. Usually, the faithless electors act alone. An exception was in 1836 when 23 Virginia electors changed their vote together. In that year, Martin Van Buren's Vice Presidential running mate, Richard Johnson, did not receive the minimum votes to become the Vice President but ultimately won the office on the first ballot by the United States Senate in 1837.

There are laws to punish faithless electors in 24 states. While no faithless elector has ever been punished, the constitutionality of state pledge laws was brought before the Supreme Court in 1952 ( Ray v. Blair, 343 U.S. 214). The court ruled in favor of state laws requiring electors to pledge to vote for the winning candidate, as well as remove electors who refuse to pledge. As stated in the ruling, electors are acting as a function 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 have the power to cancel his or her vote. ^[4]

As electoral slates are normally chosen by the political party and/or the party's presidential nominee, electors are usually those with high loyalty to the party and its candidate, and a faithless elector runs a greater risk of party censure than governmental action.

While not a "faithless elector" as such, there have been two instances in which a candidate died between the selection of the electors in November and the Electoral College vote in December. 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 therefore no pressure to agree on a replacement candidate. Similarly, 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 M. Butler. Electors pledged to a dead candidate are free to vote for whomever they wish just as electors pledged to a live candidate are.

Faithless electors have not changed the outcome of a presidential election in any election to date.

Joint Session of Congress and the Contingent Election

Federal law mandates that Congress assemble in joint session on the sixth day of the calendar year following the meetings of the Presidential Electors to count the electoral votes and declare the winners of the election. ^[5] The meeting is held at 1:00 p.m. in the Chamber of the U.S. House of Representatives. The Vice President is expected to preside, but in several cases the President pro tempore of the Senate has presided. 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 and place them on tables in front of the Senators and Representatives. Each house appoints two tellers to count the vote. Relevant portions of the Certificate of Vote are read for each state, in alphabetical order. If there are no objections, the presiding officer declares the result of the vote and, if applicable, states who was elected President and Vice President. The Senators then depart from the House Chamber.

Contingent Presidential election by House

If no candidate for President receives a majority (270 votes) of the 538 possible electoral votes, the House of Representatives is required to go into session immediately to vote for President (pursuant to the Twelfth Amendment). In this case, the House of Representatives chooses from the three candidates who received the most electoral votes. Each state delegation has a single vote, decided by majority decision (an evenly divided state delegation is considered to have abstained). A candidate receiving the majority of votes of all states (currently 26) is declared the President-elect. If no candidate receives a majority, the House proceeds to a second ballot and continues balloting until a candidate receives a majority of the state unit votes. This situation would most likely occur only when more than two candidates receive electoral votes, but could theoretically happen in a two-person contest if each received 269 electoral votes.

To date, the House of Representatives has chosen the President on only two occasions: in 1801 and in 1825.

Contingent Vice Presidential election by Senate

If no candidate for Vice President receives an absolute majority of electoral votes, then the United States Senate must do the same, with the top two vote receivers for that office as candidates. The Senate votes in the normal manner in this case, not by States. Pursuant to the Twelfth Amendment, a "majority of the whole number" of Senators is necessary for there to be a selection of one of the two candidates.

To date, the Senate has chosen the Vice President only once: in 1837.

Deadlocked chambers

If the House of Representatives has not chosen a winner in time for the inauguration (noon on January 20), then Section 3 of the Twentieth Amendment specifies that the new Vice President becomes Acting President until the House selects 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 Speaker of the House of Representatives would become Acting President until the House selects a President or the Senate selects a Vice President.

History

At the Constitutional Convention, the Virginia Plan used as the basis for discussions called for the Executive to be elected by the Legislature. ^[6] Delegates from a majority of states agreed to this mode of election. ^[7] However, a committee 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 President's independence. ^[8] Though some delegates preferred popular election, the committee's proposal was approved, with minor modifications, on September 6. ^[9]

In the Federalist Papers No. 39, James Madison argued that the Constitution was designed to be a mixture of federal (state-based) and national (population-based) government. The Congress would have two houses, one federal and one national in character, while the President would be elected by a mixture of the two modes, giving some electoral power to the states and some to the people in general. Both the Congress and the President would be elected by mixed federal and national means. ^[10]

Origin of name

The term "Electoral College" is not used in the United States Constitution, and it was not until the early 1800s that it came into general usage as the designation for the group of citizens 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."

Original plan

Article II, Section 1, Clause 2 of the Constitution says, "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." It then goes on to describe how the electors vote for President. Article II, Section 1, Clause 4 of the Constitution says, "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. The primary difference was that the Electors voted for two Persons for President, rather than one vote for President and one vote for Vice President. After the choosing of the President, whoever had the most Electoral Votes, among the remaining candidates, would become the Vice President.

In the Presidential elections of 1796 and 1800, political parties complicated matters. In 1796 the winner of the election was John Adams, a member of the Federalist Party, and the runner up (and therefore the new Vice President) was Thomas Jefferson, a member of the Democratic-Republican Party. In 1800, the candidates of the Democratic-Republican Party (Thomas Jefferson for President and Aaron Burr for Vice President) each tied for first place. Since all Electoral Votes were for President, Aaron Burr's votes were technically for him being President even though he was his party's Vice Presidential candidate. Aaron Burr tried to convince the House of Representative to make him the President, but after 36 ballots Thomas Jefferson was chosen by the House of Representatives to be President. Because of the elections of 1796 and 1800, Article II, Section 1, Clause 3 was superseded by the Twelfth Amendment in 1804.

Alternative methods of choosing electors

The current system of choosing Presidential 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 Presidential 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.)

Before the advent of the short ballot in the early twentieth century, 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 (possibly the first year in which it was used). 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 ^[11] (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 (2000) ^[12], a Florida Supreme Court decision was vacated (not reversed) based on McPherson v. Blacker. On the other hand, three justices, dissenting in Bush v. Gore, wrote that "nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it". ^[13]

Appointment by state legislature

Another method of choosing electors is selection by the state legislature. It was used by more than half of the states in 1792 and 1800 and exactly half of the states in 1812. One of the reasons that most United States history textbooks don't start reporting the popular vote until the election of 1824 is because more than a quarter of all the states used legislative choice in previous elections, so there was no popular vote in those states. Even in 1824, when Andrew Jackson famously accused Adams and Clay of a corrupt bargain because he lost in spite of having pluralities of both the popular and electoral votes, a full quarter of the states (6 of 24) had the state legislatures choose their electors. By the following election, only Delaware and South Carolina continued to use legislative choice, and Delaware dropped out the following election. South Carolina held on to legislative choice until it became the first state to secede in December 1860.

Legislative appointment made three more appearances on the electoral stage: first, in 1864, Nevada, having been made a state only a few days previously, had no choice but to appoint. Then, in 1868, the newly reconstructed state of Florida appointed its electors, having been readmitted too late to hold elections. Then, in 1876, the newly admitted state of Colorado used legislative choice due to a lack of time and money to hold an election. It was also a possibility in the 2000 election. Had the recounts continued, the Florida legislature was prepared to appoint the Republican slate of electors to avoid missing the federal deadline for choosing electors.

The Constitution gives the power to the state legislatures to decide how electors are chosen, and it is 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 has a serious flaw: legislatures can deadlock more easily than the electorate. In fact, this is precisely what happened in 1789, when New York failed to appoint any electors.

Electoral districts

Another method for choosing electors is to divide a state into electoral districts, and the voters of each district choose a single elector, much as states are currently divided into congressional districts for choosing representatives. The electoral districts cannot correspond with congressional districts, though, because there are two more electoral districts than congressional districts. As with congressional districts, moreover, this method is vulnerable to gerrymandering.

States which have used Electoral Vote Districting and the years used:

• Illinois: 1820, 1824.
• Kentucky: 1792, 1796, 1800, 1804, 1808, 1812, 1816, 1820, 1824.
• Maryland: 1796, 1800, 1804, 1808, 1812, 1816, 1820, 1824, 1828, 1832.
• Michigan: 1892.
• Missouri: 1824.
• North Carolina: 1796, 1800, 1804, 1808.
• Tennessee: 1804, 1808, 1812, 1816, 1820, 1824, 1828.
• Virginia: 1789, 1792, 1796.

District Method

The District Method involves a State awarding 2 of its electoral votes based on the statewide winner and 1 electoral vote for the winner in each of its Congressional districts. ^[14] Under the District Method a State's electoral votes could be split among two or more candidates, just as a State's Congressional delegation can be split among political parties. Nebraska and Maine are the only States to use this method of distributing electoral votes. ^[15]

The District Method was first used by Massachusetts in the elections of 1804, 1812, and 1820. After seceding from Massachusetts, Maine used this method through the election of 1828. ^[16] Maine resumed using the District Method in the election of 1972. Nebraska has used the District Method since the election of 1992. ^{[17] [18]}

New York, 1828

In 1828, New York used its own variant of the Maine method for choosing electors. Just as Maine and Nebraska now do, voters in each congressional district would select one elector. Then these electors would in turn choose the remaining electors, instead of these electors being directly determined by voters statewide. In this single state contest, it resulted in a 20–16 split between Andrew Jackson and John Quincy Adams.

Arguments for and against the current system

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Arguments against the current system

Unequal weight of voters

Supporters of direct election argue that it would give everyone an equally weighted vote, regardless of what state he or she lives in, and oppose giving disproportionately amplified voting power to voters in states with small populations. Under the current system, the vote of an individual living in a state with three electoral votes is proportionally more influential than the vote of an individual living in a state with a large number of electoral votes.

Essentially, the Electoral College ensures that candidates, particularly in recent elections, pay attention to key 'swing-states' (those states that are not firmly rooted in either the Republican or Democratic party). It equally assures that voters in states that are not believed to be competitive will be disregarded.

Losing the popular vote

In the elections of 1824, 1876, 1888, and 2000, the candidate receiving an aggregate plurality of the popular vote did not become president (although, in 1824, not every state held a popular election, so the true popular vote is uncertain; in those six states, the legislatures appointed the electors). With no candidate having received a majority of electoral votes in 1824, the election was decided by the House of Representatives, and is thus distinct from the latter three elections in which a single candidate won in fact by an Electoral College majority.

Proponents of the system counter that the Electoral College requires candidates cultivate greater and broader support throughout the entire nation; a popular vote system could elect a candidate who wins by large margins in only a few of the largest states over another candidate who wins by small margins in all the rest of the states. The latter candidate, the rationale goes, appeals to a wider array of interests than the former and is less likely to be a demagogue or extremist. However, a popular vote system does not guarantee to favor the latter candidate in that scenario. In fact, given the 2000 allocation of electors, a candidate could have won with only the support of the 11 largest states.

A result of the present functionality of the Electoral College is that the national popular vote bears no legal or factual significance. As the aggregate popular vote is irrelevant, both voters and candidates may base their campaign strategies around the existence of the Electoral College. Claims that the Electoral College suppresses the popular will are therefore legitimately open to debate. For example, in 2004, it was generally taken for granted that Massachusetts would vote Democratic while Texas would vote Republican; voters within those state whose preferred major-party candidate was unlikely to prevail thusly found themselves freer to vote for third party candidates—or not vote at all—since casting their ballot was extremely unlikely to affect the result. Conversely, a voter in Florida was more likely to vote Democratic or Republican, even if they favored a third-party candidate, because their vote was much more likely to make a difference. Consequently, in any close race, candidates campaign to maximize electoral votes, not to maximize national popular vote totals.

The effects of this phenomenon are somewhat known, but impossible to quantitatively predict in any close election such as 2000, when Al Gore received more of the popular vote than George W. Bush.

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 & New York; Republican for Texas), and therefore candidates typically devote relatively few resources, in both time and money, to such states.

It is also theoretically possible to win the election by winning all of 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 theory, if a minimum number of voters were to vote in those eleven states, the other major ticket could have a landslide victory in the popular vote and still lose the election.) There is no election in American history in which such an event has occurred or come close to occurring. 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.

Proponents claim, however, that adoption of the popular vote would simply shift the disproportionate focus to large cities at the expense of rural areas. ^[19] 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.

Favors less populous states

As well as to give more voting power to citizens of less populated states, the electoral college gives disproportionate power to those state interests as well. This can further correspond with national political control, since most states tend to go either Republican or Democratic, and the less populous states tending toward the former. Democrats often complain for this reason that the electoral college favors the Republican party, by boosting the electoral weight of Republican states.

Attempts have been made to prove the converse with a game theory analysis, using the Banzhaf Power Index (BPI) according to which, individual voters in California (highest electoral vote count) have approximately 3.3 times the individual power to choose a president as voters of Montana (Highest population with the minimum 3 electors). ^[20] However, Banzhaf's analysis has been critiqued as treating votes like coin-flips, and an empirical model of voting rather than a random voting model as used by Banzhaf brings results which do not favor larger states. ^[21]

Disadvantage for third parties

Some proponents of proportional representation claim that, because third parties generally start as regional phenomena and because the Electoral College is a form of regional allocation, the Electoral College would enhance the power of third parties if electoral votes were allocated by proportional representation. Generally, the winner-take-all manner of allocating a state's delegates, coupled with the winner-take-all approach of the college itself, decreases the importance of minor parties.

Arguments for the current system

Requires widespread popular support to win

Proponents of the Electoral College argue that organizing votes by regions forces a candidate to seek popular support over a majority of the country. Since a candidate cannot count on winning the election based solely on a heavy concentration of votes in a few areas, the Electoral College avoids much of the sectionalism that has plagued other geographically large nations, such as China, India, the Soviet Union, and the Roman Empire. ^{[ citation needed]}

There are some examples of candidates winning elections without broad national support. For example, Lincoln won in 1860 without contesting a single southern state. On the other hand, in the elections of 1876 and 1888 Rutherford B. Hayes and Benjamin Harrison, respectively, both lost the popular vote but won in the electoral college. In each case, the victorious candidate demonstrated broader national support, losing the popular vote only because his opponent rolled up very large margins in a small number of southern states. Given that violence and fraud prevented many blacks and white Republicans from voting in Southern states in these elections, each could legitimately claim a broader popular mandate than their respective opponents. ^[22]

Maintains the federal character of the nation

The United States of America is a federal coalition; it consists of component states, each of which are joined in an alliance with what has, traditionally, been a small, state-controlled central government.^{[ citation needed]} Proponents of the current system argue that the collective opinion of even a small state merits attention not to be entirely overshadowed simply by a small portion of a very populous state. 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. ^[23]

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 special interests. ^[23]

However, this does not apply to states like Maine and Nebraska that do not employ an all-or-nothing system for selecting their electors, though it does apply to individual electors.

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 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. Critics of this argument disagree with the statement that emerging third parties are a bad thing.

Death or unsuitability of a candidate

While it is common to think of the electoral votes as numbers, the college is in fact made up of real people (usually party regulars of the party whose candidate wins each state). If a candidate were to die or become in some other way unsuitable to serve as President or Vice President, these electors can choose a suitable replacement who would most likely come from the same party of the candidate who won the election. The time period of such a death or unsuitability that is covered extends 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.

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 therefore 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 M. Butler.

Isolation of election problems

Some supporters of the Electoral College note that it isolates the impact of potential election fraud or other problems to the state where such occurs. The College prevents instances where a party dominant in one state may dishonestly inflate the votes for a candidate and thereby affect the election outcome. Recounts, for instance, occur only on a state-by-state basis, not nationwide. Similarly, the College acts to isolate less malicious election problems to the state in which they occur. ^[24]

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 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.

Current reform proposals

Interstate compact

This proposal, also known as the Amar Plan, calls for an interstate compact whereby individual states agree to allocate their electors to the winner of the national popular vote. The agreement is triggered only upon a certain threshold of states enacting electoral reallocation legislation. The state legislatures together would then establish a direct vote and effectively circumvent the Electoral College system if enough electoral votes switch. The National Popular Vote plan recommends that the present manner of allocating electors shall remain in force until enough states have signed on as to account for a majority of electoral votes.

The proposal centers on Article II, Section 1, Clause 2 of the United States Constitution, which provides, "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." Many partial versions of this plan have emerged over the years.

While the power of each State to determine how it chooses its electors is clearly plenary, what remains unclear is whether such coordination between the States is a violation of Article I, Section 10, clause 3—the Compact Clause—so long as Congress has not approved such an arrangement.

Maryland is the first state to have passed the legislation. On April 10, 2007, the Governor of the State of Maryland, Martin O'Malley, signed a bill into law providing that, should enough states adopt the same law, the whole of the Maryland's electoral votes would go to the presidential candidate with the greatest number of votes nationally for his or her electors, instead of going to the candidate whose electors receive the most votes within the state. ^[25]

New Jersey Gov. Jon S. Corzine signed legislation on Sunday, January 13, 2008 that approved delivering the state’s 15 electoral votes to the winner of the national popular vote in the presidential election. The compact would take effect only if enough states — those with a majority of votes in the Electoral College — agreed to it. Republicans criticized the bill as undermining federal elections. ^[26]

A bill (HB 1685) to enact the Compact, that was passed by the Illinois state legislature on January 9, 2008, is being considered by Illinois Governor Rod Blagojevich. ^[27]

The District of Columbia House Voting Rights Act

Legislation is currently before Congress (H.R.1905/S 1257) that would add a congressional seat to Utah (going from three representatives to four) and give Washington DC a voting seat in the House of Representatives. The additional seat in Utah would give that state one additional vote in the Electoral College (going from five to six). Since Washington DC is already given three voting members in the Electoral College ( Twenty-third Amendment to the United States Constitution), this change in Congress would not change its representation in the Electoral College. If this legislation passes and survives the inevitable challenge to its constitutionality (Washington, D.C. is not a state and is thus not allowed representation in Congress under Article 1, Sections 1 and 2 of the U.S. Constitution) the total number of Electoral College votes would increase by one to 539. But the majority needed to elect a president would still be 270.

Proportional vote

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The primary proposal of this type is for states to implement a proportional vote system. Under such a system, electors would be selected in proportion to the votes cast for their candidate or party, rather than being selected to represent only the plurality vote. As an example, consider the 2000 election, in which the George W. Bush / Richard Cheney ( Republican) and Albert Gore Jr. / Joseph Lieberman ( Democratic) tickets were the primary contenders, with the Ralph Nader/ Winona LaDuke ( Green) ticket taking a small but noteworthy minority. In California, the approximate proportion of votes for these tickets was 41.65 percent Bush/Cheney, 53.45 percent Gore/Lieberman, and 3.82 percent Nader/LaDuke. Under the current system, all 54 electoral votes were for Gore/Lieberman. Under a simple proportional system, the votes might be distributed as 23 Bush/Cheney, 29 Gore/Lieberman, and 2 Nader/LaDuke.

As a practical matter, this system would be very difficult to implement. According to the Constitution, the state legislatures decide how electors are chosen. It is usually not in the interest of an individual state to switch to a method of proportional allocation because it reduces that state's influence in the Electoral College. This can be illustrated by the case of Colorado, which in 2004 voted down an initiative on its 2004 ballot, Amendment 36, which would have instituted a system of proportional allocation of electors beginning immediately with the 2004 election. Had the proposal passed, Colorado would not have been a swing state in 2008, no matter how closely contested. The state's nine electoral votes would almost certainly end up divided 5-4, no matter which candidate won a plurality. Thus, winning the Colorado popular vote would only give the successful candidate one additional electoral vote over his or her opponent instead of nine.

A perceived problem with dividing electoral votes proportionally is that it would be harder for a candidate to achieve a majority of the electoral vote, since a proportional system would enable a third party candidate to win electoral votes. If this system had been used in 1992 and 1996, and all electors had voted as pledged, there would have been no winner at all, and the House of Representatives would have chosen the President, and the Senate would have selected the Vice President. In 1996 Robert Dole would almost certainly have been the House winner, and Jack Kemp the Senate winner, despite receiving significantly fewer votes than Bill Clinton and Al Gore. In 2000, Al Gore would have received 269 electoral votes, George W. Bush 263, and Ralph Nader 6. If all electors voted as pledged, the Presidential race would have gone to the House, and Bush likely would have won, but the Vice Presidential decision in the Senate would have likely split 50–50, with neither Vice Presidential candidate getting "a majority of the whole number" of Senators (as required by the Twelfth Amendment).

District Method

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Other observers argue that the current electoral rules of Maine and Nebraska should be extended nationwide. As previously noted, the winner in each of those two states is only guaranteed two of Maine's four and two of Nebraska's five electoral votes, with the winner of each Congressional district in those states receiving one electoral vote. Using the California example again, Gore won 33 of the state's Congressional districts and the state overall, while Bush won 19 Congressional districts. With the 2 votes for the state's overall result added, the state's electoral votes would then have gone 35–19 for Gore.

However, this kind of allocation would still make it possible for the loser of the popular vote to become president. Dividing electoral votes by House district winners would create yet another incentive for partisan gerrymandering. Direct election proponents oppose the district method also because candidates would focus on the votes of only the competitive districts, making the votes of even fewer Americans matter than when candidates focus on votes in competitive states. ^[28]

Another perceived problem with this suggestion is that it would actually further increase the advantage of small states. In winner-take-all, the small states' disproportionately high number of electors is partially offset by the fact that large states with their big electoral blocks are such a highly desirable boon to a candidate that large swing states actually receive much more attention during the campaign than smaller states. In the proportional vote or District Method, this advantage of the large states would be gone.

Yet another argument with both the District Method and the Proportional vote is that even if it is considered superior as a nationwide system, winner-take-all generally maximizes the power of an individual state and thus while it might be in the interest of the nation, it is not in the interest of the state to adopt any other system. Since the United States Constitution gives the states the power to choose their method of appointing the electors, nationwide District Method without a constitutional amendment mandating it seems unlikely, and the passage of such an amendment seems equally unlikely since the House delegations of the largest states (against whose interests such a system would be), taken together, easily surpass the one third of the House size that is needed to block a constitutional amendment.

Abolishing the non-proportional electors (drop 2)

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Another proposed reform is to make the number of electors that each state has the same as its number of Representatives (effectively the same as the current system, except taking two electoral votes from each state). This plan, sometimes called "drop 2," could still be seen as inherently unfair, as some of the least populous states would be proportionally overrepresented while some of the slightly more populous single-representative states would be significantly underrepresented (for example, Wyoming, the least populous state, has 1 Representative for 510,000 inhabitants; Montana has 1 Representative for 935,000 inhabitants; compare this to California, which averages one Representative for each 681,000 Californians).

Proponents of this suggestion say that this will preserve the Electoral College's benefits and make the system more democratic at the same time. Others say this will remove the extra power given to the small states intended to make elections more fair and there would still exist the phenomenon of non-swing states being ignored.

Historian Arthur Schlesinger, Jr. has proposed decreasing the number of electors in the Electoral College from 538 to 436, with each state allotted the same number of votes as their number of representatives in the House of Representatives (with one vote for the District of Columbia). Each state would be required to use a winner-take-all system. Then, 102 votes would automatically be given to the winner of the national popular vote. Schlesinger felt that this would maintain the stability of a two-party system (as a winner-take-all system already does), while virtually guaranteeing that the person who wins the national popular vote would automatically win the Presidential election.

The "Bayh-Celler" Amendment

The closest the nation has ever come to abolishing the electoral college occurred during the 91st Congress. 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. ^[29]

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. A "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." ^[30]

On April 29, 1969, the House Judiciary Committee voted favorably, 28-6, to approve the Amendment. ^[31] Debate on the proposed Amendment before the full House of Representatives ended on September 11, 1969, ^[32] and was eventually passed with bipartisan support on September 18, 1969, being approved by a vote of 339 to 70. ^[33]

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. ^[34]

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. ^[35]

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. ^[36] However, Nixon, while not reneging on his previous endorsement, chose not to make any further personal appeals to back the legislation. ^[37]

Open debate on the Amendment finally reached the Senate floor on Tuesday, September 8, 1970, ^[38] 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. ^[39]

On September 17, 1970, a motion for cloture, which would have ended the filibuster, failed to receive the 60 votes, or two-thirds of those Senators voting, necessary to pass. The vote was 54 to 36 in favor of the motion. ^[40] 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. ^[41] However, the Amendment was never considered again and died when the 91st Congress officially ended on January 3, 1971.

See also

• Electoral vote changes between presidential elections
• Every Vote Counts Amendment
• List of U.S. states by population
• Electoral college
• National Popular Vote Interstate Compact
• Constitution of the Roman Republic

Notes

References

• http://fpc.state.gov/documents/organization/28109.pdf
• Office of the Federal Register
• District of Columbia Fair and Equal House Voting Rights Act of 2006

External links

• Historical Documents on the Electoral College
• 270towin.com
• "Math Against Tyranny"