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The United States Electoral College is the institution that officially elects the President and Vice President of the United States every four years. The President and Vice President are not elected directly by the voters. Instead, they are elected by "electors" who are chosen by popular vote on a state-by-state basis. Electors are apportioned to each state and the District of Columbia, but not to territorial possessions of the United States, such as Puerto Rico and Guam. The number of electors in each state is equal to the number of members of Congress to which the state is entitled, while the Twenty-third Amendment grants the District of Columbia the same number of electors as the least populous state, currently three. In total, there are 538 electors, corresponding to the 435 members of the House of Representatives, 100 senators, and the three additional electors from the District of Columbia.
Electors are almost always pledged to particular presidential and vice presidential candidates, though unpledged electors are possible. Except for the electors in Maine and Nebraska, electors are elected on a "winner-take-all" basis. That is, all electors pledged to the presidential candidate who wins the most votes in a state become electors for that state. Maine and Nebraska use the "congressional district method", selecting one elector within each congressional district by popular vote and selecting the remaining two electors by a statewide popular vote. Although no elector is required by federal law to honor a pledge, there have only been very few occasions when an elector voted contrary to a pledge. The Twelfth Amendment specifies how a President and Vice President are elected and requires each elector to cast one vote for President and another vote for Vice President.
The candidate that receives an absolute majority of electoral votes (currently 270) for the offices of President or Vice President is elected to that office. The Twelfth Amendment provides for what happens if the Electoral College fails to elect a President or Vice President. If no candidate receives a majority for President, then the House of Representatives will select the President, with each state delegation (instead of each Representative) having only one vote. If no candidate receives a majority for Vice President, then the Senate will select the Vice President, with each Senator having one vote.
Critics argue that the Electoral College is inherently undemocratic and gives swing states disproportionate influence in electing the President and Vice President. The Electoral College gives a numeric advantage in the election of the president to the smaller states, as the minimum number of electors for the small states is three compared to one for the election of representatives. On the other hand, the winner-take-all method of voting favors the larger states. On four occasions, most recently in 2000, the Electoral College system has resulted in the election of a candidate who did not receive the most popular votes in the election. A number of constitutional amendments have been proposed seeking to alter the Electoral College or replace it with a direct popular vote.
The Constitutional Convention in 1787 used the Virginia Plan as the basis for discussions, as the Virginia delegation had proposed it first. The Virginia Plan called for the Congress to elect the President. Delegates from a majority of states agreed to this mode of election. However, the Committee of Eleven, 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 independence of the President if he was elected by the Congress. Some delegates, including James Wilson and James Madison, preferred popular election of the executive. Madison acknowledged that while a popular vote would be ideal, it would be difficult to get consensus on the proposal given the prevalence of slavery in the South:
There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.
The Convention approved the Committee's Electoral College proposal, with minor modifications, on September 6, 1787. Delegates from the small states generally favored the Electoral College out of concern that the large states would otherwise control presidential elections.
Although the United States Constitution refers to "Electors" and "electors", the name "Electoral College" — or any other name – is never used to describe the electors collectively. It was not until the early 19th century that the name "Electoral College" came into general usage as the collective designation for the electors 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."
Article II, Section 1, Clause 2 of the Constitution states:
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.
Article II, Section 1, Clause 4 of the Constitution states:
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. In the original system, the candidate who received both the most votes and votes from more than half of the electors would become President; the candidate receiving the second most votes would become Vice President.
The design of the Electoral College was based upon several assumptions and anticipations of the Framers of the Constitution:
On these facts, some scholars have described the Electoral College as being intended to nominate candidates from which the Congress would then select a President and Vice President.
Each state government is free to have its own plan for selecting its electors. Several different methods are described at length below.
The emergence of political parties and nationally coordinated election campaigns soon complicated matters in the elections of 1796 and 1800. In 1796, Federalist Party candidate John Adams won the presidential election; by finishing in second place, Democratic-Republican Party candidate Thomas Jefferson, the Federalists' opponent, became the Vice President. This resulted in the President and Vice President not being of the same political party.
In 1800, the Democratic-Republican Party again nominated Jefferson for President, and also nominated Aaron Burr for Vice President. After the election, Jefferson and Burr both obtained a majority of electoral votes, but tied one another with 73 votes each. Since ballots did not distinguish between votes for President and votes for Vice President, every ballot cast for Burr technically counted as a vote for him to become President, despite Jefferson clearly being his party's first choice. Lacking a clear winner by constitutional standards, the election had to be decided by the House of Representatives pursuant to the Constitution's contingency election provision.
Having already lost the presidential contest, Federalist Party Representatives in the lame duck House session seized upon the opportunity to embarrass their opposition and attempted to elect Burr over Jefferson. The House deadlocked for 35 ballots as neither candidate received the necessary majority vote of the state delegations in the House (the votes of nine states were needed for an election). Jefferson achieved electoral victory on the 36th ballot, but only after Federalist Party leader Alexander Hamilton—who disfavored Burr's personal character more than Jefferson's policies—had made known his preference for Jefferson.
Responding to the problems from those elections, the Congress proposed the Twelfth Amendment in 1803—prescribing electors cast separate ballots for President and Vice President—to replace the system outlined in Article II, Section 1, Clause 3. By June 1804, the states had ratified the amendment in time for the 1804 election.
On May 8, 1866, during a debate on the Fourteenth Amendment, Thaddeus Stevens, the leader of the Republicans in the House of Representatives, delivered a speech on the amendment's intent. Regarding Section 2, he said:
The second section I consider the most important in the article. It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive.
The closest the country has ever come to abolishing the Electoral College occurred during the 91st Congress (1969-1971). The presidential election of 1968 resulted in Richard Nixon receiving 301 electoral votes (56% of electors), Hubert Humphrey 191 (35.5%) and George Wallace 46 (8.5%) with 13.5% of the popular vote. However, Nixon had only received 511,944 more popular votes than Humphrey, 43.5% to 42.9%, less than 1% of the national total.
Representative Emanuel Celler (D – New York), Chairman of the House Judiciary Committee, responded to public concerns over the disparity between the popular vote and electoral vote by introducing House Joint Resolution 681, a proposed Constitutional amendment which would have replaced the Electoral College 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. 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. The word "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."
On April 29, 1969, the House Judiciary Committee voted 28 to 6 to approve the proposal. Debate on the proposal before the full House of Representatives ended on September 11, 1969 and was eventually passed with bipartisan support on September 18, 1969, by a vote of 339 to 70.
On September 30, 1969, President Richard Nixon gave his endorsement for adoption of the proposal, encouraging the Senate to pass its version of the proposal which had been sponsored as Senate Joint Resolution 1 by Senator Birch Bayh (D – Indiana).
On October 8, 1969, the New York Times reported that 30 state legislatures 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 adoption. The paper also reported that 6 other states had yet to state a preference, 6 were leaning toward opposition and 8 were solidly opposed.
On August 14, 1970, the Senate Judiciary Committee sent its report advocating passage of the proposal 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 indicated that supporters of the measure were about a dozen votes shy from the 67 needed for the proposal to pass the full Senate. He called upon President Nixon to attempt to persuade undecided Republican Senators to support the proposal. However, Nixon, while not reneging on his previous endorsement, chose not to make any further personal appeals to back the proposal.
Open debate on the proposal in the Senate commenced on September 8, 1970 and was quickly subjected to a filibuster. The lead objectors to the proposal 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. On September 17, 1970, a motion for cloture, which would have ended the filibuster, received 54 votes to 36 for cloture, failing to receive the then required two-thirds majority of Senators voting. A second motion for cloture on September 29, 1970 also failed, by 53 to 34. Thereafter, the Senate Majority Leader, Mike Mansfield of Montana, moved to lay the proposal aside so that the Senate could attend to other business. However, the proposal was never considered again and died when the 91st Congress ended on January 3, 1971.
The constitutional theory behind the indirect election of both the President and Vice President of the United States is that while the Congress is popularly elected by the people, the President and Vice President are elected to be executives of a federation of independent states.
In the Federalist No. 39, James Madison argued that the Constitution was designed to be a mixture of state-based and population-based government. The Congress would have two houses: the state-based Senate and the population-based House of Representatives. Meanwhile, the President would be elected by a mixture of the two modes.
Additionally, in the Federalist No. 10, James Madison argued against "an interested and overbearing majority" and the "mischiefs of faction" in an electoral system. He defined a faction as "a number of citizens whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Republican government (i.e., federalism, as opposed to direct democracy), with its varied distribution of voter rights and powers, would countervail against factions. Madison further postulated in the Federalist No. 10 that the greater the population and expanse of the Republic, the more difficulty factions would face in organizing due to such issues as sectionalism.
Presidential electors are selected on a state-by-state basis, as determined by the laws of each state. Generally (with Maine and Nebraska being the exceptions), each state appoints its electors on a winner-take-all basis, based on the statewide popular vote on Election Day. Although ballots list the names of the presidential candidates, voters within the 50 states and Washington, D.C. actually choose electors for their state when they vote for President and Vice President. These presidential electors in turn cast electoral votes for those two offices. Even though the aggregate national popular vote is calculated by state officials and media organizations, the national popular vote is not the basis for electing a President or Vice President.
A candidate must receive an absolute majority of electoral votes (currently 270) to win the Presidency. If no candidate receives a majority in the election for President, or Vice President, that election is determined via a contingency procedure in the Twelfth Amendment, which is explained in detail below.
A state's number of electors equals the number of representatives and senators the state has in the United States Congress. In the case of representatives, this is based on the respective populations. Each state's number of representatives is determined every 10 years by the United States Census. In the case of senators, each state is entitled to two.
Under the Twenty-third Amendment, Washington, D.C. is allocated as many electors as it would have if it were a state, but no more electors than the least populous state. The least populous state (Wyoming, as of 2011[update]) has three electors; thus, D.C. cannot have more than three electors. Even if D.C. were a state, its population would entitle it to only three electors; based on its population per electoral vote, D.C. has the second highest per-capita Electoral College representation, after Wyoming.
Currently, there is a total of 538 electors, there being 435 representatives and 100 senators, plus the three electors allocated to Washington, D.C.. The six states with the most electors are California (55), Texas (34), New York (29), Florida (29), Illinois (20) and Pennsylvania (20). The seven smallest states by population—Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming—have three electors each. This is because each of these states are entitled to one representative and two senators.
Article II, Section 1, Clause 2 of the Constitution requires each state legislature to determine how electors for the state are to be chosen, but it disqualifies any person holding a federal office, either elected or appointed, from being an elector. Under Section 3 of the Fourteenth Amendment, any person who has sworn an oath to support the United States Constitution in order to hold either a state or federal office, and later rebelled against the United States, is disqualified from being an elector. However, the Congress may remove this disqualification by a two-thirds vote in each House.
Candidates for elector are nominated by their state political parties in the months prior to Election Day. In some states, the electors are nominated in primaries, the same way that other candidates are nominated. In some states, such as Oklahoma, Virginia and North Carolina, electors are nominated in party conventions. In Pennsylvania, the campaign committee of each candidate names their candidates for elector (an attempt to discourage faithless electors).
The Tuesday following the first Monday in November has been fixed as the day for holding federal elections, called the Election Day. Forty eight states and Washington, D.C., employ the "winner-takes-all method", each awarding its electors as a single bloc. Maine and Nebraska use the "congressional district method", selecting one elector within each congressional district by popular vote and selecting the remaining two electors by a statewide popular vote. This method has been used in Maine since 1972 and in Nebraska since 1996.
The current system of choosing electors is called the "short ballot." In most states, voters choose a slate of electors, and only a few states list on the ballot the names of proposed electors. In some states, if a voter wants to write in a candidate for President, the voter is also required to write in the names of proposed electors.
After the election each state prepares seven Certificates of Ascertainment, each listing the candidates for President and Vice President, their pledged electors, and the total votes each candidacy received. One certificate is sent, as soon after Election Day as practicable, to the National Archivist in Washington D.C. The Certificates of Ascertainment are mandated to carry the State Seal, and the signature of the Governor (in the case of the District of Columbia, the Certificate is signed by the Mayor of D.C.).
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The Electoral College never actually meets as one body. Electors chosen on Election Day meet in their respective state capitals (or in the case of the District of Columbia, within the District) on the Monday after the second Wednesday in December, at which time they cast their electoral votes on separate ballots for President and Vice President.
Although procedures in each state vary slightly, the electors generally follow a similar series of steps, and the Congress has constitutional authority to regulate the procedures the states follow. The meeting is opened by the election certification official—often that state's secretary of state or equivalent—who reads the Certificate of Ascertainment. This document sets forth who was chosen to cast the electoral votes. Each elector present answers to his name, and any vacancies are noted in writing. The next step is the selection of a president or chairman of the meeting, sometimes also with a vice chairman. The electors sometimes choose a secretary, often not himself 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.
Each state's electors must complete six Certificates of Vote. Each Certificate of Vote must be signed by all of the electors and a Certificate of Ascertainment must be attached to each of the Certificates of Vote. Each Certificate of Vote must include the names of those who received an electoral vote for either the office of President or of Vice President. The electors certify the Certificates of Vote and copies of the Certificates are then sent in the following fashion:
A staff member of the President of the Senate collects the Certificates of Vote as they arrive and prepares them for the joint session of the Congress. The Certificates are arranged—unopened—in alphabetical order and placed in two special mahogany boxes. Alabama through Missouri (including the District of Columbia) are placed in one box and Montana through Wyoming are placed in the other box.
A faithless elector is one who casts an electoral vote for someone other than the person pledged or does not vote for any person. 24 states have laws to punish faithless electors. In 1952, the constitutionality of state pledge laws was brought before the Supreme Court in Ray v. Blair, 343 U.S. 214 (1952). The Court ruled in favor of state laws requiring electors to pledge to vote for the winning candidate, as well as removing electors who refuse to pledge. As stated in the ruling, electors are acting as a functionary 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 only punish a faithless elector after-the-fact, states like Michigan also specify that the faithless elector's vote be voided.
As electoral slates are typically chosen by the political party or the party's presidential nominee, electors usually have high loyalty to the party and its candidate: a faithless elector runs a greater risk of party censure than criminal charges.
Faithless electors have not changed the outcome of any presidential election to date. For example, in 2000 elector Barbara Lett-Simmons of Washington, D.C. chose not to vote, rather than voting for Al Gore as she had pledged to do. This was done as an act of protest against Washington, D.C.'s lack of congressional voting representation. That elector's abstention did not change who won that year's presidential election, as George W. Bush received a majority (271) of the electoral votes.
The Twelfth Amendment mandates that the Congress assemble in joint session to count the electoral votes and declare the winners of the election. The session is ordinarily required to take place on January 6 in the calendar year immediately following the meetings of the presidential electors. Since the Twentieth Amendment, the newly elected House declares the winner of the election; all elections before 1936 were determined by the outgoing House instead.
The meeting is held at 1:00 pm in the Chamber of the U.S. House of Representatives. The sitting Vice President is expected to preside, but in several cases the President pro tempore of the Senate has chaired the proceedings instead. 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 containing each state's certified vote and place them on tables in front of the Senators and Representatives. Each house appoints two tellers to count the vote (normally one member of each political party). Relevant portions of the Certificate of Vote are read for each state, in alphabetical order.
Members of Congress can object to any state's vote count, provided that the objection is presented in writing and is signed by at least one member of each house of Congress. An objection supported by at least one Senator and one Representative will be followed by the suspension of the joint session and by separate debates and votes in each House of Congress; after both Houses deliberate on the objection, the joint session is resumed. A State's certificate of vote can be rejected only if both Houses of Congress vote to accept the objection. In that case, the votes from the State in question are simply ignored. The votes of Arkansas and Louisiana were rejected in the presidential election of 1872.
Objections to the electoral vote count are rarely raised, although it did occur during the vote count in 2001 after the close 2000 presidential election between Governor George W. Bush of Texas and the Vice President of the United States, Al Gore. Vice President Gore, who as Vice President was required to preside over his own Electoral College defeat (by five electoral votes), denied the objections, all of which were raised only by several House members and would have favored his candidacy, after no Senators would agree to jointly object. Objections were again raised in the vote count of the 2004 elections, and on that occasion the document was presented by one Representative and one Senator. Although the joint session was suspended, the objections were quickly disposed of and rejected by both Houses of Congress. If there are no objections or all objections are overruled, the presiding officer simply includes a State's votes, as declared in the certificate of vote, in the official tally.
After the certificates from all States are read and the respective votes are counted, the presiding officer simply announces the final result of the vote and, provided that the required absolute majority of votes was achieved, declares the names of the persons elected President and Vice President. This announcement concludes the joint session and formalizes the recognition of the President-elect and of the Vice President-elect. The Senators then depart from the House Chamber. The final tally is printed in the Senate and House journals.
Pursuant to the Twelfth Amendment, the House of Representatives is required to go into session immediately to vote for President if no candidate for President receives a majority of the electoral votes (since 1964, 270 of the 538 electoral votes).
In this event, the House of Representatives is limited to choosing from among the three candidates who received the most electoral votes. Each state delegation votes en bloc – each delegation having a single vote; the District of Columbia does not receive a vote. A candidate must receive an absolute majority of state delegation votes (i.e., at present, a minimum of 26 votes) in order for that candidate to become the President-elect. Additionally, delegations from at least two-thirds of all the states must be present for voting to take place. The House continues balloting until it elects a President.
If no candidate for Vice President receives an absolute majority of electoral votes, then the Senate must go into session to elect a Vice President. The Senate is limited to choosing from only the top two candidates to have received electoral votes (one fewer than the number to which the House is limited). The Senate votes in the normal manner in this case (i.e., ballots are individually cast by each Senator, not by state delegations). However, two-thirds of the Senators must be present for voting to take place.
Additionally, the Twelfth Amendment states that a "majority of the whole number" of Senators (currently 51 of 100) is necessary for election. Further, the language requiring an absolute majority of Senate votes precludes the sitting Vice President from breaking any tie which might occur, although this is disputed by some legal scholars.
The only time the Senate chose the Vice President was in 1837. In that instance, the Senate adopted an alphabetical roll call and voting aloud. The rules further stated, "[I]f a majority of the number of Senators shall vote for either the said Richard M. Johnson or Francis Granger, he shall be declared by the presiding officer of the Senate constitutionally elected Vice President of the United States..." (Johnson won).
If the House of Representatives has not chosen a President-elect in time for the inauguration (noon on January 20), then Section 3 of the Twentieth Amendment specifies that the Vice President-elect 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 sitting Speaker of the House would become Acting President until either the House selects a President or the Senate selects a Vice President. None of these situations has ever occurred.
The following table shows the number of electoral votes (EV) to which each state and the District of Columbia will be entitled during the 2012, 2016 and 2020 presidential elections: The numbers in parentheses represent the number of electoral votes that a state gained (+) or lost (-) because of reapportionment following the 2010 Census.
|Alabama||9||Indiana||11||Nebraska||5**||South Carolina||9 (+1)|
|Alaska||3||Iowa||6 (−1)||Nevada||6 (+1)||South Dakota||3|
|Arizona||11 (+1)||Kansas||6||New Hampshire||4||Tennessee||11|
|Arkansas||6||Kentucky||8||New Jersey||14 (−1)||Texas||38 (+4)|
|California||55||Louisiana||8 (−1)||New Mexico||5||Utah||6 (+1)|
|Colorado||9||Maine||4**||New York||29 (−2)||Vermont||3|
|Delaware||3||Massachusetts||11 (−1)||North Dakota||3||Washington||12 (+1)|
|Florida||29 (+2)||Michigan||16 (−1)||Ohio||18 (−2)||West Virginia||5|
|Idaho||4||Missouri||10 (−1)||Pennsylvania||20 (−1)||Washington, D.C.*||3|
|Illinois||20 (−1)||Montana||3||Rhode Island||4||Total electors||538|
The following is a list of electoral votes by state.
Before the advent of the short ballot in the early 20th century, as described above, 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. 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, 146 U.S. 1 (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, 531 U.S. 70 (2000), a Florida Supreme Court decision was vacated (not reversed) based on McPherson. On the other hand, three dissenting justices in Bush v. Gore, 531 U.S. 98 (2000), wrote: "nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it."
The original method of choosing electors was by state legislative choice. A majority of the states selected presidential electors by legislation in both 1792 (9 of 15) and 1800 (10 of 16), and half of the states did so in 1812. Even in the 1824 election, a quarter of states (6 of 24) chose electors by legislation. In that election, Andrew Jackson lost in spite of having pluralities of both the popular and electoral votes, with the outcome being decided by the six state legislatures choosing the electors. By 1828, only Delaware and South Carolina used legislative choice. Delaware ended its practice the following election (1832), while South Carolina continued using the method until it seceded from the Union in December 1860.
Excluding South Carolina, legislative appointment was used in only four situations after 1832:
Legislative appointment was brandished as a possibility in the 2000 election. Had the recount continued, the Florida legislature was prepared to appoint the Republican slate of electors to avoid missing the federal safe-harbor deadline for choosing electors.
The Constitution gives each state legislature the power to decide how its state's electors are chosen and it can be 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 can have negative consequences: bicameral legislatures can deadlock more easily than the electorate. This is precisely what happened to New York in 1789 when the legislature failed to appoint any electors.
Another method used early in U.S. history was to divide the state into electoral districts. By this method, voters in each district would cast their ballots for the candidate they supported and the winner in each district would receive that electoral vote. This was similar to how states are currently separated by congressional districts. However, the difference stems from the fact that every state always had two more electoral districts than congressional districts. As with congressional districts, moreover, this method is vulnerable to gerrymandering.
All states had discarded this method of elector selection after 1832. However, this method reappeared in Michigan for the 1892 election. Before the election, the Democratic Party had gained control of Michigan's state legislature and changed the method used from at-large popular voting to electoral district voting in order to capture at least a portion of the state's electoral votes (at the time, Michigan tended to vote Republican). The plan worked, and Michigan split its vote: nine votes for Republican Benjamin Harrison and five votes for Democrat Grover Cleveland. Once the Republican party regained control of the state legislature, the method of elector selection was switched back to at-large popular voting.
Under such a system, electors would be selected in proportion to the votes cast for their candidate or party, rather than being selected by the statewide plurality vote.
There are two versions of the Congressional District Method: one has been implemented in Maine and Nebraska; another that has been proposed in Virginia. Under the implemented Congressional District Method, the electoral votes are distributed based on the popular vote winner within each of the state’s congressional districts; the statewide popular vote winner receives two additional electoral votes.
In 2013, a different version of the Congressional District Method was proposed in Virginia. This version would distribute Virginia's electoral votes based on the popular vote winner within each of Virginia's congressional districts; the two statewide electoral votes would be awarded based on which candidate won the most congressional districts, rather than on who won Virginia's statewide popular vote.
The Congressional District Method can more easily be implemented than other alternatives to the winner-takes-all method. State legislation is sufficient to use this method. However, the Congressional District Method has its downsides. For instance, candidates might only spend time in certain battleground districts instead of the entire state and cases of gerrymandering could become exacerbated as political parties attempt to draw as many safe districts as they can.
Only Maine and Nebraska use the Congressional District Method for distributing their electoral votes. Maine has four electoral votes, based on its two Representatives and two Senators. Nebraska has two Senators and three Representatives, giving it five electoral votes. Maine began using the Congressional District Method in the election of 1972. Nebraska has used the Congressional District Method since the election of 1992.
The Congressional District Method allows a state the chance to split its electoral votes between multiple candidates. Before 2008, neither Maine nor Nebraska had ever split their electoral votes. Nebraska split its electoral votes for the first time in 2008, giving John McCain its statewide electors and those of two congressional districts, while Barack Obama won the electoral vote of Nebraska's 2nd congressional district. Following the 2008 split, some Nebraska Republicans made efforts to discard the Congressional District Method and return to the winner-takes-all system. In January 2010, a bill was introduced in the Nebraska legislature to revert to a winner-take-all system; the bill died in committee in March 2011. Republicans had also passed bills in 1995 and 1997 to eliminate the Congressional District Method in Nebraska, but those bills were vetoed by Democratic Governor Ben Nelson.
In 2010, Republicans in Pennsylvania, who control both houses of the legislature as well as the governorship, put forward a plan to change the state's winner-takes-all system to a Congressional District Method system. Pennsylvania has voted for the Democratic candidate in the five previous presidential elections, so many saw this as an attempt to take away Democratic electoral votes. Barack Obama won Pennsylvania in 2008, but he only won a minority of the state's congressional districts. The plan later lost support.
Arguments between proponents and opponents of the current electoral system include four separate but related topics: indirect election, disproportionate voting power by some states, the winner-takes-all distribution method (as chosen by 48 of the 50 states), and federalism. Arguments against the Electoral College in common discussion mostly focus on the allocation of the voting power among the states. Gary Bugh’s research of congressional debates over proposed Electoral College amendments reveals that reform opponents have often appealed to a traditional version of representation, whereas reform advocates have tended to reference a more democratic view.
The elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive the plurality of the nationwide popular vote. In 1824, there were six states in which electors were legislatively appointed, rather than popularly elected, so the true national popular vote is uncertain. When no candidate received a majority of electoral votes in 1824, the election was decided by the House of Representatives and so could be considered distinct from the latter three elections in which all of the states had popular selection of electors.
Opponents of the Electoral College claim that such outcomes do not logically follow the normative concept of how a democratic system should function. One view is that the Electoral College violates the principle of political equality, since presidential elections are not decided by the one-person one-vote principle. Outcomes of this sort are attributable to the federal nature of the system. From such a configuration, argue supporters of the Electoral College, candidates must build a popular base that is geographically broader and more diverse in voter interests. This feature is not a logical consequence of having intermediate elections of Presidents, but rather the winner-takes-all method of allocating each state's slate of electors. Allocation of electors in proportion to the state's popular vote could reduce this effect.
Scenarios exhibiting this outcome typically result when the winning candidate has won the requisite configuration of states (and thus their votes) by small margins, but the losing candidate captured large voter margins in the remaining states. In this case, the very large margins secured by the losing candidate in the other states would aggregate to well over 50 percent of the ballots cast nationally. In a two-candidate race, with equal voter turnout in every district and no faithless electors, a candidate could win the electoral college while winning only about 22% of the nationwide popular vote. This would require the candidate in question to win each one of the following states by just one vote: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.
A result of the present functionality of the Electoral College is that the national popular vote bears no legal or factual significance on determining the outcome of the election. Since the national popular vote is irrelevant, both voters and candidates are assumed to base their campaign strategies around the existence of the Electoral College; any close race has candidates campaigning to maximize electoral votes by capturing coveted swing states, not to maximize national popular vote totals.
The United States is the only country that elects a politically powerful president via an electoral college and the only one in which a candidate can become president without having obtained the highest number of votes in the sole or final round of popular voting.—George C. Edwards, 2011
According to this criticism, the electoral college encourages political campaigners to focus on a few so-called "swing states" while ignoring the rest of the country. Populous states in which pre-election poll results show no clear favorite are inundated with campaign visits, saturation television advertising, get-out-the-vote efforts by party organizers and debates, while "four out of five" voters in the national election are "absolutely ignored," according to one assessment. Since most states use a winner-takes-all arrangement in which the candidate with the most votes in that state receives all of the state's electoral votes, there is a clear incentive to focus almost exclusively on only a few key undecided states; in recent elections, these states have included Pennsylvania, Ohio, and Florida in 2004 and 2008, and also Colorado in 2012. In contrast, states with large populations such as California, Texas, and New York, have in recent elections been considered "safe" for a particular party––Democratic for California and New York and Republican for Texas––and therefore campaigns spend less time and money there. Many small states are also considered to be "safe" for one of the two political parties and are also generally ignored by campaigners: of the 13 smallest states, six are reliably Democratic, six are reliably Republican and only New Hampshire is considered as a swing state, according to critic George C. Edwards III. In the 2008 election, campaigns did not mount nationwide efforts but rather focused on select states.
It is possible to win the election by winning eleven states and disregarding the rest of the country. If one ticket were to take California (55 votes), Texas (38), New York (29), Florida (29), Illinois (20), Pennsylvania (20), Ohio (18), Michigan (16), Georgia (16), North Carolina (15), and New Jersey (14) that ticket would have 270 votes, which would be enough to win. 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. In 2008, the Democratic candidate Barack Obama won nine of these eleven states (for 222 electoral votes), with Republican John McCain taking a combined 49 electoral votes from Texas and Georgia.
Proponents of the Electoral College claim that adoption of the popular vote would shift the disproportionate focus to large cities at the expense of rural areas. 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. Proponents of a national popular vote for president dismiss such arguments, pointing out that candidates in popular vote elections for governor and U.S. Senate and for statewide allocation of electoral votes do not ignore voters in less populated areas.
Except in closely fought swing states, voter turnout is largely insignificant due to entrenched political party domination in most states. The Electoral College decreases the advantage a political party or campaign might gain for encouraging voters to turn out, except in those swing states. If the presidential election were decided by a national popular vote, in contrast, campaigns and parties would have a strong incentive to work to increase turnout everywhere. Individuals would similarly have a stronger incentive to persuade their friends and neighbors to turn out to vote. The differences in turnout between swing states and non-swing states under the current electoral college system suggest that replacing the Electoral College with direct election by popular vote would likely increase turnout and participation significantly.
According to this criticism, the electoral college reduces elections to a mere count of electors for a particular state, and, as a result, it obscures any voting problems within a particular state. For example, if a particular state blocks some groups from voting, perhaps by voter suppression methods such as imposing reading tests, poll taxes, registration requirements, or legally disfranchising specific minority groups, then voting inside that state would be reduced. But the state's electoral count would be the same. So disenfranchisement has no effect on the overall electoral tally. Critics contend that such disenfranchisement is partially obscured by the Electoral College. A related argument is that the Electoral College may have a dampening effect on voter turnout: there is no incentive for states to reach out to more of its citizens to include them in elections because the state's electoral count remains fixed in any event. According to this view, if elections were by popular vote, then states would be motivated to include more citizens in elections since the state would then have more political clout nationally. Critics contend that the electoral college system insulates states from negative publicity as well as possible federal penalties for disenfranching subgroups of citizens.
Legal scholars Akhil Amar and Vikram Amar have argued that the original Electoral College compromise was enacted partially because it enabled the southern states to disenfranchise its slave populations. It permitted southern states to disfranchise large numbers of slaves while allowing these states to maintain political clout within the federation by using the three-fifths compromise. They noted that constitutional Framer James Madison believed that the question of counting slaves had presented a serious challenge but that "the substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections." Akhil and Vikram Amar added that:
The founders' system also encouraged the continued disfranchisement of women. In a direct national election system, any state that gave women the vote would automatically have doubled its national clout. Under the Electoral College, however, a state had no such incentive to increase the franchise; as with slaves, what mattered was how many women lived in a state, not how many were empowered ... a state with low voter turnout gets precisely the same number of electoral votes as if it had a high turnout. By contrast, a well-designed direct election system could spur states to get out the vote.—Akhil and Vikram Amar
As a consequence of giving more per capita voting power to the less populated states, the Electoral College gives extra power to voters in those states. Some critics of the Electoral College assert that the system favors the Republican Party by disproportionately boosting the electoral weight of the less populous states, but Democrats in fact won the majority of the 13 smallest states in five of the six presidential elections between 1992 and 2008.
In one countervailing analysis about smaller states gaining an Electoral College advantage, the Banzhaf power index (BPI) model based on probability theory was used to test the hypothesis that citizens of small states accrue more election power. It was found that in 1990, individual voters in California, the largest state, had 3.3 times more individual power to choose a President than voters of Montana, the largest of the minimum 3 elector states. Banzhaf's method has been criticized for treating votes like coin-flips, and more empirically based models of voting yield results which seem to favor larger states less.
In practice, the winner-take-all manner of allocating a state's electors generally decreases the importance of minor parties. However, it has been argued that the electoral college is not a cause of the two-party system, and that it had a tendency to improve the chances of third-party candidates in some situations.
One view is that the electoral college is overly and unnecessarily complex:
The electoral college does not provide a straightforward process for selecting the president. Instead, it can be extraordinarily complex and has the potential to undo the people's will at many points in the long journey from the selection of electors to counting their votes in Congress.—George Edwards, 2011
Proponents of the Electoral College claim the Electoral College prevents a candidate from winning the Presidency by simply winning in heavily populated urban areas. This means that candidates must make a wider geographic appeal than they would if they simply had to win the national popular vote.
The United States of America is a federal coalition which consists of component states. Proponents of the current system argue that the collective opinion of even a small state merits attention at the federal level greater than that given to a small, though numerically equivalent, portion of a very populous state. The system also allows each state the freedom, within constitutional bounds, to design its own laws on voting and enfranchisement without an undue incentive to maximize the number of votes cast.
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.
In his book A More Perfect Constitution, Professor Larry Sabato elaborated on this advantage of the Electoral College, arguing to "mend it, don't end it," in part because of its usefulness in forcing candidates to pay attention to lightly populated states and reinforcing the role of the state in federalism.
Instead of 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 advocacy groups.
Many proponents of the Electoral College see its negative effect on third parties as beneficial. They argue that the two party system has provided stability because it encourages a delayed adjustment during times of rapid political and cultural change. 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 across the nation. Advocates of a national popular vote for president suggest that this effect would also be true in popular vote elections. Of 918 elections for governor between 1948 and 2009, for example, more than 90% were won by candidates securing more than 50% of the vote, and none have been won with less than 35% of the vote.
According to this argument, the fact that the electoral college is made up of real people instead of mere numbers allows for human judgment and flexibility to make a decision, if it happens that a candidate dies or becomes legally disabled around the time of the election. Advocates of the current system argue that human electors would be in a better position to choose a suitable replacement than the general voting public. According to this view, electors could act decisively during the critical time interval between when ballot choices become fixed in state ballots until mid-December when the electors formally cast their ballots. In the election of 1872, losing Democratic candidate Horace Greeley died during this time interval which resulted in Democratic disarray, but the Greeley electors were able to split their votes for different alternate candidates. A situation in which the winning candidate died has never happened. In the election of 1912, Vice President Sherman died shortly before the election when it was too late for states to remove his name from their ballots; accordingly, Sherman was listed posthumously, but the eight electoral votes that Sherman would have received were cast instead for Nicholas Murray Butler.
Some supporters of the Electoral College note that it isolates the impact of any election fraud, or other such problems, to the state where it occurs. It prevents instances where a party dominant in one state may dishonestly inflate the votes for a candidate and thereby affect the election outcome. For instance, recounts occur only on a state-by-state basis, not nationwide. Critics of the current system suggest that the results in a single state – such as Florida in 2000 – can decide the national election and thus not keep any problems in such a state isolated from the rest of the nation.
A proposal has been made to restore the one person one vote principle without having to change the Constitution which involves an interstate compact. Individual states agree to pledge their electors to the winner of the national popular vote, provided that enough other states follow suit. The state legislatures of the cooperating states would then establish a direct election, thereby effectively circumventing the Electoral College, since they would collectively have a majority (at least 270) of the electoral votes.
This elegantly exploits one of the perversities of our current system—there’s no individual, federal right to have your ballot counted—and turns it against the system itself. It’s a state-based solution that could finally force a federal popular-vote election. And it’s gaining steam.— Katrina vanden Heuvel, in The Nation, 2012
The proposal is based on the current rule in Article II, Section 1, Clause 2 of the Constitution which gives each state legislature the authority to determine how it chooses its electors. Many partial versions of this plan have emerged over the years.
While each state has plenary power to determine how it chooses its electors, it is unclear whether Article I, Section 10, Clause 3 of the Constitution requires congressional consent before this compact could take effect.
Eight states and the District of Columbia have joined the compact. The first was Maryland, when Governor Martin O'Malley signed the bill into law on April 10, 2007. New Jersey joined on January 13, 2008, despite objections from Republicans who criticized the bill as undermining federal elections. Illinois passed the law on April 7, 2008. Hawaii joined on May 1, when the legislature overrode a veto from Governor Linda Lingle. On April 28, 2009, the State of Washington joined, when Governor Christine Gregoire signed HB 1598. Massachusetts joined the compact on August 4, 2010, when Governor Deval Patrick signed that state's bill into law. Additionally, the District of Columbia, which has three electoral votes, joined the compact on December 7, 2010. Vermont joined the compact on April 22, 2011, when Governor Peter Shumlin signed that state's bill into law. On August 8, 2011, California joined when Governor Jerry Brown signed a bill adding California to the compact. As of July 2013[update], adopters of the compact collectively had a total of 136 electoral votes, 134 votes short of the 270 needed for an electoral college majority.
|Wikisource has the text of the 1905 New International Encyclopedia article Electoral College.|