The Electoral College

Introduction

The Constitution provides that the president will be selected by an Electoral College, not by direct popular vote.  Only 538 persons, representing the slates of electors chosen by voters in the fifty states and the District of Columbia, actually vote directly for president.  The person receiving a majority of the votes of electors becomes the president.  In the event that no candidate receives a majority of electoral votes, the decision falls, under the 12th Amendment, to the House of Representatives.The mode of the selection of the president was one of the most difficult and contentious issues in the 1787 Convention.  Some delegates urged that the president be selected by the legislature.  Other delegates, favoring direct election, argued that selection by the legislature would mean–at least if presidents could serve more than one term–that the president would be continually trying to please the legislators and would not be truly independent.  Delegates opposed to direct election expressed the concern that presidents would always come from more populous states and wondered whether the public would have the knowledge of various candidates necessary to make a wise selection.  The final decision of the delegates, to have electors chosen by the various state legislatures elect the president, was the result of a compromise worked out by a committee comprised of one delegate from each of the states and presented to the Convention on September 4, 1787.

Several elections have tested the Electoral College system. 

  • The first contested election was that of 1800 when both Thomas Jefferson and his running mate, Aaron Burr, received 73 electoral votes, throwing the election into the House of Representatives.  (After 36 ballots, the House chose Jefferson.)  The consequence of the 1800 election was the 12th Amendment, providing that electors vote separately for president and vice-president. 

  • The 1824 election saw a four-way split of electoral votes, with the House eventually choosing John Quincy Adams as president even though Andrew Jackson had received more electoral votes. 

  • The 1876 election was a true mess, with disputes over which slates of electors had won in four different states.  The final determination as to which slates of electors had in fact been elected was made on an 8-7 vote by a congressional commission.  The commission’s decision gave Rutherford Hayes 185 electoral votes and the presidency.   The winner of the popular vote, Samuel Tilden, finished with 184 electoral votes. (One cost of the 1876 election was the end of Reconstruction: to win Democrats’ acceptance of the commission’s decision, Republicans agreed to withdraw troops from the South, effectively trading the presidency for the disenfranchisement of blacks.)

In 2000, trouble brewed again when electoral victory hinged upon a terribly close and challenged fight for Florida’s 25 electoral votes.  The fight for Florida’s votes went twice to the U. S. Supreme Court. In the second case, Bush v Gore, the Supreme Court effectively determined the outcome of the presidential race by reversing a Florida Supreme Court decision ordering a statewide recount of undervotes.  The Court majority found that the recount scheme violated the Equal Protection Clause.  Five justices went on to interpret Florida law as preferring a final certification by December 12 (the deadline for falling within the so-called “safe harbor” protection) to a more accurate recount by December 18 (the date that electors actually vote).  That interpretation of Florida law by the five most conservative members of the Court handed the presidency to Gov. Bush, since the opinion was released at 10 pm on December 11 and no recount by the 12th was possible.

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Relevant Provisions of the Constitution

Article II

Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, togetherwith the Vice President, chosen for the same Term, be elected, as follows: 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….

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Twelfth Amendment

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the samestate with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. . . . The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President to the United States.

Twentieth Amendment

Section 1.The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. Ifa President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Twenty-Third Amendment

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. 

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Nate Silver’s Page:  A statistical approach to predictive outcomes.

Al Gore’s Concession Speech of 2000 

New York Times documentary on election of 2000

Bush v. Gore (Oyez Link)

Summary from Oyez:

Facts of the case

Following the U.S. Supreme Court’s decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore’s contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all “under-votes” (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court’s decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.

Question

Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?

Conclusion

Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment,” the per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held, 5 to 4, that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the “safe harbor” provided by 3 USC Section 5).

Loathe to make broad precedents, the per curiam opinion limited its holding to the present case. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court’s decision made new election law, which only the state legislature may do. Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court’s recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake. Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court’s decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.

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Math: The eight States (incl. DC) with 3 electors each comprise 1.89% of the US population giving them 4.48% of the Electoral College; the eight largest States comprise 47.79% of the US population but have electors representing 41.82% of the Electoral College.

In 2000,  the 22 smallest states had a total of 98 Electoral votes, though their combined population was roughly equal to that of California which had only 54 Electoral votes. (98+54=152; CA had 36% representation by comparison to 64% for the 22 States whose population would have made them equal.)

What justification exists to over-represent some States, and under-represent others?

A resource with some analysis of options (www.thirty-thousand.org)