– Delegate Gerry, July 25, 1787
Regardless of the candidacies of Libertarian Gary Johnson or the Green Party’s Jill Stein, when the dust settles and the votes are counted, the winner of the 2012 general election will most assuredly be either Democrat Barack Obama or Republican Mitt Romney. If the candidate you supported wins, you will feel the elation of victory; if the candidate you supported loses, you will feel the bitter sting of defeat. In either case, you will feel as if you had a hand in shaping the outcome. As if you had a hand in shaping history.
The manner in which we elect our Presidents is often widely misunderstood. While there is widespread debate about the propriety of our election system, and constant talk of reforming it, the United States does not elect its presidents via the popular vote, but rather by a system referred to as the Electoral College. The name “Electoral College” conjures images of ivy-covered walls, discussions between statesmen, and grandiose rooms filled with books. In reality, it is the formal process by which the next President and Vice-President of these United States is selected.
At the time of the Constitution’s adoption, there was much debate over how to select the Nation’s Chief Executive. On one hand, some of the Founding Fathers believed that President should be accountable to the legislature, and therefore that the President should be selected by the legislature. On the other hand, other Founding Fathers, including James Wilson and James Madison, advocated for a direct vote from the people, arguing that the President should represent the people and not the states. In the end, delegates voted more than 60 times on how presidents were to be chosen. Most strikingly, however, is that the debate “revolved around the relative disadvantages of each mode of election, and few delegates displayed great enthusiasm for any particular choice on its merits.” Legislative election raised separation of powers issues and concerns of a weak executive; direct popular vote would disadvantage smaller states and slaveholding states, where a significant portion of the population remained disenfranchised.
Ultimately, Article II created the Electoral College as a compromise between legislative election and popular election. The pertinent part of Article II reads: “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.” In other words, each State receives the number of votes equal to its numbers of Representatives and Senators. Today, there are a total of 538 Electoral College votes. In order to win, a presidential candidate must secure a simple majority of those votes (i.e., 270 votes).
Rather than representing an abstract concept, however, the Electoral College votes are actually represented by real people, referred to in Article II above as “Electors.” Each candidate running for President has his or her own group of Electors, and while state laws vary on how the Electors are selected, these individuals are generally selected by each candidate’s political party. Article II gives wide latitude to the States to govern the selection of Electors (“in such a manner as the Legislature thereof may direct”), so long as “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” After the polls close on November 6 and the results are finalized, the Governor of your State will prepare a “Certificate of Ascertainment.” The “Certificate of Ascertainment” finalizes the election results by declaring the winning presidential candidate and identifies, based on this result, which Electors will represent your State at the meeting of Electors.
On the first Monday after the second Wednesday in December (in 2012, that date is December 17), the Electors from each State meet in order to cast their votes for President and Vice-President on separate ballots. With the exception of Maine and Nebraska, which mandate “proportional representation,” each State has a winner-take-all approach to the Electoral College; that is, each State’s Electoral College votes are allocated only to the winning candidate’s group of Electors. Note, however, that this does not mean that these Electors will vote for the winning candidate (e.g., some GOP Electors, all former Ron Paul supporters, are threatening to defect even if Mitt Romney wins their States election).
The votes cast during the meeting of Electors are then counted in a joint session of Congress on January 6. After the Congressional vote count, the Vice-President, as President of the Senate, declares which persons have been elected President and Vice-President. On January 20 of the following year, the President-elect is sworn into office.
Article II makes clear, however, that the Founding Fathers did not envisage that the President would be selected by the Electoral College alone. When the Constitution was ratified, the Founding Fathers anticipated that support for presidential candidates would be sufficiently diffuse that the election of the President would ultimately be thrown into the House of Representatives. Accordingly, Article II states that, if the Electoral College produced more than one individual of the “whole Number of Electors appointed” who “have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse [sic] by Ballot one of them for President.” Like the Electoral College itself, this process was envisaged as a compromise, in the words of James Madison, “between the larger and smaller states, giving to the latter the advantage of selecting a President from the candidates, in consideration of the former in selecting candidates from the people.”
Article II originally mandated a similar procedure for the selection of the Vice-President: “In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be Vice President.” Thus, each Elector would choose two persons from those running for President, and the runner-up in the voting would become the Vice-President. If no vice-presidential candidate received a majority of electoral votes, Article II directed that “the Senate shall chuse [sic] from them by Ballot.” After the election of 1800, however, in which Republican presidential-candidate Thomas Jefferson and his running mate Aaron Burr received an equal number of votes, the Twelfth Amendment was ratified mandating separate ballots for President and Vice-President.
The Founding Fathers’ belief that the Electoral College would not control the outcome of the election was grounded in their antipathy, reflected in the structure of the Constitution itself, towards the formation of political parties. In The Federalist, for example, James Madison “was occupied immediately with the problem of so dividing the government as to resist the formation of political parties.” Madison disparagingly referred to political parties as “factions,” and “he hoped that parties would merely come and go as their temporary objects dictated.” Without the benefit of organized political parties, Madison and the other Founding Fathers believed, no one candidate, with the exception of perhaps George Washington, would command enough national support to secure enough Electoral College votes.
The naivety of this belief was soon apparent even to Madison himself: “By an irony which he cannot have either anticipated or enjoyed, Madison himself soon became one of the leading agents in the process by which interests were consolidated into parties.” The manner in which our government is structured – with single-member districts, winner-take-all elections, and even the Electoral College itself – facilitated this aspect of American political elections. Today, because our political system has entrenched two primary political parties (Democrats and Republicans), that the Electoral College will decide the election is a virtual inevitability.
Critics of the Electoral College often argue that it “is one of the most dangerous institutions in American politics today” because its “primary impact . . . is to give the citizens of some states more influence over the presidential election than citizens of other states.” According to this argument, the unevenness of voting power underscores the fundamental unfairness of the Electoral College: “about 139,000 eligible voters in Wyoming get one Electoral College vote. But it takes nearly 478,000 eligible voters in Pennsylvania to get an Electoral College Vote. (Does Wyoming really need to be protected? I’m pretty sure the Cowboy State can take care of itself.)” Indeed, the 2012 Election will likely be decided by only a handful of states (Colorado, Florida, Iowa, Nevada, New Hampshire, North Carolina, Ohio, Virginia and Wisconsin).
There is thus a powerful argument that the Electoral College makes a mockery of the “one-person-one-vote” principle announced by the Supreme Court in Reynolds v. Sims. Because of this, critics often argue that the Electoral College should be eliminated entirely. But because the Electoral College is founded in the Constitution itself, the chances of this actually happening are extraordinarily slim. A constitutional amendment may be proposed either (1) by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or (2) by a constitutional convention called for by two thirds of the State legislatures (this option has never been used). However, the proposed amendment becomes part of the Constitution only after being ratified by three-fourths of the States (38 of 50 States). Despite the fact that the Constitution has been amended 27 times since it was signed, as Judge Richard Posner of the Seventh Circuit notes, this process makes “it almost impossible to amend the Constitution – not impossible, but almost impossible. And as a result of limited foresight of the framers and the difficulty of amendment, it has to be interpreted loosely, otherwise it becomes a straitjacket.”
Proponents of the Electoral College often acknowledge the tension between the current system and the principle of one-person, one-vote. For example, as Charles Lane at The Washington Post noted, “it’s easy to see why the electoral college is so unloved. It is inconsistent with the idea of one-person, one-one vote; every 677,000 Californians get one electoral vote, while the 563,000 inhabitants of Wyoming get three.” However, they often point out that, despite the Electoral College’s flaws, there is no such thing as a perfectly fair voting system. Moreover, because the Electoral College encourages a two-party system, it prevents a scenario in which a candidate can be elected President with considerably less than 50 percent of the popular vote. As Lane remarked, “It’s not clear why this is any less of an affront to democracy and majority rule than the electoral college itself. Do we really want a popular-vote system that could easily produce presidents based on 25 or 30 percent of the ballots cast?”
In all of our nation’s history, only three candidates have won the popular vote but lost the presidency: Samuel J. Tilden (1876); Grover Cleveland (1888); Al Gore (2000) (note that this is not counting the multi-candidate election of 1824). Given the state of the 2012 General Election, in which Mitt Romney currently leads President Obama in the popular vote but trails Obama with regard to the Electoral College, some in the media have speculated that such a scenario could play out again. This would mark the second time in the last 12 years that a presidential candidate has been spurned by the Electoral College, one time to a Democrat and one time to a Republican. And if this does indeed happen, there may be enough political will to change the system. But until it does, one thing is absolutely certain: as we barrel our way towards November 6, the path to the presidency lies only through Electoral College. It is important that you know how it works.