Notwithstanding the founders’ efforts, the electoral college system almost never functioned as they intended, but, as with so many constitutional provisions, the document prescribed only the system’s basic elements, leaving ample room for development. As the republic evolved, so did the electoral college system, and, by the late 19 century, the th following range of constitutional, federal and state legal, and political elements of the contemporary system were in place.
Allocation of Electors and Electoral Votes
The Constitution gives each state a number of electors equal to the combined total of its Senate membership (two for each state) and House of Representatives delegation (currently ranging from one to 52, depending on population). The 23rd Amendment provides an additional three electors to the District of Columbia. The number of electoral votes per state thus currently ranges from three (for seven states and D.C.) to 54 for California, the most populous state.
The total number of electors each state gets are adjusted following each decennial census in a process called reapportionment, which reallocates the number of Members of the House of Representatives to reflect changing rates of population growth (or decline) among the states. Thus, a state may gain or lose electors following reapportionment, but it always retains its two “senatorial” electors, and at least one more reflecting its House delegation.Popular Election of Electors
Today, all presidential electors are chosen by the voters, but, in the early republic, more than half the states chose electors in their legislatures, thus eliminating any direct involvement by the voting public in the election. This practice changed rapidly after the turn of the nineteenth century, however, as the right to vote was extended to an ever-wider segment of the population. As the electorate continued to expand, so did the number of persons able to vote for presidential electors, to its present limit of all eligible citizens age 18 or older. The tradition that the voters choose the presidential electors thus became an early and permanent feature of the electoral college system, and, while it should be noted that states still theoretically retain the constitutional right to choose some other method, this is extremely unlikely. The existence of the presidential electors and the duties of the electoral college are so little noted in contemporary society that most American voters believe that they are voting directly for a President and Vice President on election day. Although candidates for elector may be well known persons, such as governors, state legislators, or other state and local officials, they generally do not receive public recognition as electors. In fact, in most states, the names of individual electors do not appear anywhere on the ballot; instead only those of the various candidates for President and Vice President appear, usually prefaced by the words “electors for.” Moreover, electoral votes are commonly referred to as having “been awarded” to the winning candidate, as if no human beings were involved in the process.
The Electors: Ratifying the Voter’s Choice
Presidential electors in contemporary elections are expected, and, in many cases pledged, to vote for the candidates of the party that nominated them. While there is evidence that the founders assumed the electors would be independent actors, weighing the merits of competing presidential candidates, they have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the presidential and vice presidential candidates of the party that nominated them. Notwithstanding this expectation, individual electors have sometimes not honored their commitment, voting for a different candidate or candidates than the ones to whom they were pledged; they are known as “faithless” or “unfaithful” electors. In fact, the balance of opinion by constitutional scholars is that, once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have, however, been few in number (in the 20 century, one each in 1948, 1956, 1960, 1968, 1972, 1976, 1988, and 2000), and have never influenced the outcome of a presidential election.
Nominating Elector-Candidates: Diverse State Procedures
Nomination of elector-candidates is another of the many aspects of this system left to state and political party preferences. Most states prescribe one of two methods: 34 states require that candidates for the office of presidential elector be nominated by state party conventions, while a further ten mandate nomination by the state party’s central committee. The remaining states use a variety of methods, including nomination by the governor (on recommendation of party committees), by primary election, and by the party’s presidential nominee.
Joint Tickets: One Vote for President and Vice President
General election ballots, which are regulated by state election laws and authorities, offer voters joint candidacies for President and Vice President for each political party or other group. Thus, voters cast a single vote for electors pledged to the joint ticket of the party they represent. They cannot effectively vote for a President from one party and a Vice President from another, unless their state provides for write-in votes.
General Election Day
Elections for all federal elected officials are held on the Tuesday after the first Monday in November in even-numbered years presidential elections are held in every year divisible by four. Congress selected this day in 1845; previously, states held elections on different days between September and November, a practice that sometimes led to multiple voting across state lines, and other fraudulent practices. By tradition, November was chosen because the harvest was in, and farmers were able to take the time needed to vote. Tuesday was selected because it gave a full day’s travel between Sunday, which was widely observed as a strict day of rest, and election day. Travel was also easier throughout the north during November, before winter had set in.
The Electors Convene
The 12th Amendment requires electors to meet “in their respective states …” This provision was intended to deter manipulation of the election by having the state electoral colleges meet simultaneously, but keeping them separate. Congress sets the date on which the electors meet, currently the first Monday after the second Wednesday in December. The electors almost always meet in the state capital, usually in the capitol building or state house itself. They vote “by ballot” separately for President and Vice President (at least one of the candidates must be from another state). The results are then endorsed, and copies are sent to the Vice President (in his capacity as President of the Senate); the secretary of state of their state; the Archivist of the United States; and the judge of the federal district court of the district in which the electors met. Having performed their constitutional duty, the electors adjourn, and the electoral college ceases to exist until the next presidential election.
Congress Counts and Certifies the Vote
The final step in the presidential election process (aside from the presidential inaugural on January 20) is the counting and certification of the electoral votes by Congress. The House of Representatives and Senate meet in joint session in the House chamber on January 6 of the year following the presidential election, at 1:00 pm. The Vice President, who presides in his capacity as President of the Senate, opens the electoral vote certificates from each state, in alphabetical order. He then passes the certificates to four tellers (vote counters), two appointed by each house, who announce the results. The votes are then counted, and the results are announced by the Vice President. The candidates receiving a majority of electoral votes (currently 270 of 538) are declared the winners by the Vice President, an action that constitutes “a sufficient declaration of the persons, if any, elected President and Vice President of the States.”
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As Americans await the quadrennial running of the presidential obstacle course now known as the Electoral College, it’s worth remembering why we have this odd political contraption in the first place. After all, state governors in all 50 states are elected by popular vote; why not do the same for the governor of all states, a.k.a. the president? The quirks of the Electoral College system were exposed this week when Donald Trump secured the presidency with an Electoral College majority, even as Hillary Clinton took a narrow lead in the popular vote.
Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.
One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.
This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.
Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.
Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?
Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.
At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.
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Virginia emerged as the big winner—the California of the Founding era—with 12 out of a total of 91 electoral votes allocated by the Philadelphia Constitution, more than a quarter of the 46 needed to win an election in the first round. After the 1800 census, Wilson’s free state of Pennsylvania had 10% more free persons than Virginia, but got 20% fewer electoral votes. Perversely, the more slaves Virginia (or any other slave state) bought or bred, the more electoral votes it would receive. Were a slave state to free any blacks who then moved North, the state could actually lose electoral votes.
If the system’s pro-slavery tilt was not overwhelmingly obvious when the Constitution was ratified, it quickly became so. For 32 of the Constitution’s first 36 years, a white slaveholding Virginian occupied the presidency.
Southerner Thomas Jefferson, for example, won the election of 1800-01 against Northerner John Adams in a race where the slavery-skew of the electoral college was the decisive margin of victory: without the extra electoral college votes generated by slavery, the mostly southern states that supported Jefferson would not have sufficed to give him a majority. As pointed observers remarked at the time, Thomas Jefferson metaphorically rode into the executive mansion on the backs of slaves.
The 1796 contest between Adams and Jefferson had featured an even sharper division between northern states and southern states. Thus, at the time the Twelfth Amendment tinkered with the Electoral College system rather than tossing it, the system’s pro-slavery bias was hardly a secret. Indeed, in the floor debate over the amendment in late 1803, Massachusetts Congressman Samuel Thatcher complained that “The representation of slaves adds thirteen members to this House in the present Congress, and eighteen Electors of President and Vice President at the next election.” But Thatcher’s complaint went unredressed. Once again, the North caved to the South by refusing to insist on direct national election.
In light of this more complete (if less flattering) account of the electoral college in the late 18th and early 19th century, Americans should ask themselves whether we want to maintain this odd—dare I say peculiar?—institution in the 21st century.
Historians explain how the past informs the present
Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book,The Constitution Today.