A victory speech may be given by one of the presidential candidates this November, but the election won’t meet its official end until much later.
More than 100 million Americans are expected at the ballot box, but that only accounts for the first phase of the presidential election process. Though the mystery is long gone by the time the second phase occurs December, the election isn’t official until 538 electors cast their ballots for president.
This system is called the Electoral College. For more than two centuries, it’s how the United States has chosen the leader of its executive branch.
What is an electoral college?
An electoral college is a system in which a body of electors selects a candidate for a particular office.
The United States uses it to choose heads of state, but an electoral college is not uniquely American.
Today, electoral colleges can be found in France, Germany, Estonia, Madagascar, Pakistan and other countries — but not all of them use it to choose a chief executive.
Historically, the College of Cardinals — who select the Pope — is an electoral college. And the same can be said for the prince-electors who determined the Holy Roman Emperor.
It’s built into the framework of America, established by Article II, Section 1 of the Constitution. But why did the framers opt for this method over a direct popular vote?
Why do we have an electoral college?
Tara Ross has long described a simple democracy as two wolves and a sheep voting on what’s for dinner.
Ross is a retired lawyer who authored the 2019 book “Why we need the Electoral College,” as well as many other books on the topic.
In her analogy, the wolves represent the more populated states. She believes they would tyrannize the lamb, which is symbolic of states with fewer people.
Ross said the founding fathers never intended to make a simple democracy. The wounds of the American Revolution and its causes were very much still top of mind.
“They knew something that we’ve forgotten,” Ross said. “Even if they had been given a seat at the table by Parliament, we still would’ve been outvoted by Parliament.”
In the two centuries since the Constitution was ratified, Americans have developed a stronger national identity. But Ross said the earliest Americans clung to their state’s identity more than the nation’s.
She said Thomas Jefferson once visited Philadelphia and said “I miss my country.”
“Well, he was talking about Virginia,” Ross explained.
She said the United States’ Electoral College helps maintain the founders’ notion that the country is a collection of individual states, each with its own voice and a seat at the table.
Critics argue that the Electoral College disproportionately empowers battleground states, causing candidates to focus most of their attention to a small part of the country.
“I think a lot of people fool themselves if they think that this gives a lot of power to each and every state.” said Robert William Bennett, Northwestern University’s Nathaniel L. Nathanson professor of law emeritus.
“And in some sense it does, but the political domination of one or another party is already settled in most states. So it’s really the swing states that get all the attention in the campaigning that takes place.”
Bennett published the book “Taming the Electoral College” in 2006. And although he believes “candidates are clearly best served by focusing on the swing states,” he does share common ground with Ross on the dangers of neglecting other parts of the country.
Ross said having electors come from diverse regions forces a candidate to coalition build. If not, Ross said the nominee would have a hard time capturing the presidency.
And she believes political parties that don’t pay enough attention to smaller states eventually pay for it in the Electoral College.
Critics of the system also have made the case that the Electoral College was intended to empower slave states. The Three-Fifths Compromise allowed slave-holding states to bolster their representation by counting three out of every five slaves toward the population.
Even so, the 14th Amendment later repealed that clause when it guaranteed citizenship and due process to “all persons born or naturalized in the United States.“
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed,” Section 2 of the 14th Amendment reads.
Ross argues that the transcripts of the Constitutional Convention of 1787 show that the main point of contention was the smaller states wanting protection from the bigger states.
How does the Electoral College function in the U.S.?
The Electoral College consists of 538 electors who were chosen by all 50 states, plus the District of Columbia.
Each state gets an elector equal to the number of representatives and senators they send to Congress. That means 435 electors represent the House and 100 of them represent the Senate.
The final three electors are for Washington, D.C. The 23rd Amendment grants D.C. electors equal to the number of electors held by the least populous state.
Every election year, electors meet in their state capitol on the first Monday after the second Wednesday of December to cast their vote. This year, that falls on Dec. 14.
In 48 states and D.C., the candidate who wins a state’s popular vote gets all of its electors.
Maine and Nebraska are the only exceptions. These two states only give two electors to the state’s popular vote winner.
The rest are allocated based on the plurality of votes in each congressional district.
That’s why you can look at a map of election results and instead of seeing a solid blue (Democrat) or solid red (Republican) state, you’ll see stripes.
An elector usually casts their vote in accordance to their state’s popular vote, although many states don’t have laws requiring them to do so. Faithless electors have existed, but never in a capacity to overturn an election.
In July 2020, the Supreme Court ruled that a state may compel a faithless elector to follow the state’s election result.
In the first week of January, the acting vice president presides over a joint meeting of the House and Senate. There, the electors’ votes are counted.
The nominee who reaches 270 electoral votes is declared the winner. But if no candidate reaches 270, the House selects the president and the Senate chooses the vice president.
It’s a detailed system built with contingencies designed to prevent constitutional crises. But it was not the original plan for electing a president.
Why did the original plan change?
The Constitution originally intended for electors to cast two votes with no distinction as to which vote was for president and which was for vice president.
The electoral vote leader won the presidency and the runner-up would be the vice president.
And that system worked without issue during the first two elections because George Washington won them both with unanimous support from the states. But when he left office, presidential elections thrust the young nation into constitutional crises.
President Washington didn’t belong to a political party, so it was no issue having a vice president of a different party.
But that conflict became apparent in 1797 when Federalist John Adams became president and Democratic-Republican Thomas Jefferson became his vice president.
Four years later, Jefferson again ran for president. As detailed in records kept by the Library of Congress, the party intended for Aaron Burr to be his vice president.
But since the election process failed to distinguish which office a vote would count towards, the votes intended to make Burr the vice president were counted in the presidential race.
Burr tied Jefferson at 73 electoral votes, triggering a contingency election in the House where the Federalists attempted to one-up Jefferson by electing Burr.
The House failed to choose a winner on 35 ballots. The race finally found a resolution after Alexander Hamilton swayed the vote with his preference for Jefferson.
Before the election of 1804, Congress crafted and ratified the 12th Amendment, which made electors cast a single vote for president and another one specifically for vice president.
Presidential elections have grown far more democratic in the last two centuries.
The Constitution puts the states in charge of choosing electors. It never guaranteed citizens the right to take part in that.
State legislators originally picked presidential electors. But throughout the 19th Century, states individually moved to letting the public choose them.
Electoral College controversy
The presidential election of 2000 exposed Americans to a political reality that hadn’t occurred in more than a century: The candidate who wins the popular vote isn’t guaranteed the presidency.
That year, George W. Bush defeated Vice President Al Gore with 271 electoral votes, even though Gore tallied 543,895 more popular votes.
Bennett said the 2000 election and the disconnect between the Electoral College and popular vote inspired him to write his 2006 book.
“I thought, ‘Gosh, should the winner of the nationwide popular vote win the election or should this Electoral College mechanism be accepted and we get on with life,’” Bennett said.
Critics began questioning the relevance of the Electoral College, saying that it doesn’t reflect the true will of the people if the popular vote winner still loses.
Sixteen years after that election, it happened again. Donald Trump defeated Hillary Clinton with 304 electoral votes, despite Clinton winning the popular vote by 2,868,686.
Since then, the cries to abolish the Electoral College have only grown louder. Despite the well-documented protests and demonstrations, recent abolition efforts have never risen to the point in which they’ve garnered serious consideration.
Out of the 58 presidential elections, only five times has the Electoral College not produced the same winner as the popular vote. It happened in 1824, 1876 and 1888, but not again for more than a century.
Ross said these instances tend to happen during periods of political polarization and disapproval within the major parties, such as after the American Civil War and in the recent political climate.
She said they tend to resolve themselves once the party approval returns.
Even so, Bennett said there is a movement well underway to change the way America elects its president.
Efforts to change the election process
National Popular Vote Inc. is a non-profit corporation that is pushing bills through state legislatures that would maintain the Electoral College, but change the way electors are awarded.
Instead of having a state’s popular vote award electors on a winner-take-all basis, the bill would have states award electors based on the national popular vote, still winner-take-all.
So far, 15 states and D.C. have approved it. But the bill won’t take effect in those states until more states join in. It will lie dormant until it is approved by enough states to make up the majority of Electoral College votes.
“The movement is struggling to get the 270 votes that are needed to put it into effect,” Bennett said.
So far, it would account for 196 electors. The bill needs 74 more to become active.
Bennett said he crafted a variation on this proposal, which he outlines in his book, that would force candidates to change the way they campaign in states that are considered safe.
“Let’s say Texas and California, or Texas and New York, would agree that their electors would go to the winner of the nationwide popular vote,“ Bennett explained. ”If they did that, that would have an influence on the way candidates campaign for president and vice president.“
Ross is not a believer in moving to a popular vote method. She has been outspoken against the National Popular Vote Movement and believes if change is to ever come to the presidential election system, “The way to get there is to go through a formal constitutional process.”
That approach was taken by the 91st Congress between 1969 and 1970.
Rep. Emanuel Celler proposed a Constitutional amendment that would replace the Electoral College with a system based on the national popular vote.
It garnered bipartisan support, even getting the nod from President Richard Nixon. But it faced enough backlash in the Senate to die via the filibuster.
President Jimmy Carter tried a few years later by writing a letter to Congress asking for an amendment to abolish the Electoral College because the winner might not match the popular vote.
While recent elections have reignited the conversation about a national election, Ross believes the country should rely on what the Constitution has already spelled out.
“Instead of going further down this nationalized path, I would argue that we should go back towards the founders’ vision, where the states are the primary driver of the election,” Ross said.
And it’s the founders’ vision that makes any changes to the election process difficult to achieve.
The Constitution did not lay out uniform voting guidelines. They left it up to the states.
One state might not allow felons or ex-felons to vote while another may not permit registration on Election Day.
Some states have more strict voter identification laws. And the complications that would arise from a national election is where Ross and Bennett again find common ground.
“States have different qualifications that they impose on who is allowed to vote. So it isn’t really an integrated nationwide vote unless you had an entirely separate election run by federal officials for the president and vice president. And then, of course, we’d have an additional Election Day, or a more complicated Election Day,” Bennett said.
This story was reported from Atlanta.