Tag: Electoral College

Dealing with Faithless Electors: A Guide to State Laws Attempting to Bind Electors

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Awarding Electoral Votes: Winner-Take-All or District System

All 50 states and DC award electoral votes using either the winter-take-all or district system. In 48 states and DC, when a candidate for president wins a state’s popular vote, that party’s slates of electors will be the one to cast the vote for President on December 19. In Florida, for example, where Donald Trump won the state’s popular vote, the 29 electors nominated by the Republican Party in Florida will be selected and will cast their votes for president. Maine and Nebraska use a District System – wherein, one electoral vote is awarded to the presidential candidate who wins the popular vote in each congressional district, and the remaining two electoral votes are awarded to the candidates receiving the most votes statewide. Under this system, it is possible to split the state’s electoral votes.

Faithless Electors

Neither the Constitution nor federal law requires electors to vote for the presidential candidate of the party who nominated them. According to FairVote,

Since the founding of the Electoral College, there have been 157 faithless electors. 71 of these votes were changed because the original candidate died before the day on which the Electoral College cast its votes. Three of the votes were not cast at all as three electors chose to abstain from casting their electoral vote for any candidate. The other 82 electoral votes were changed on the personal initiative of the elector.

According to the National Conference of State Legislators,

Some states have passed laws that require their electors to vote as pledged. These laws may either impose a fine on an elector who fails to vote according to the statewide or district popular vote, or may disqualify an elector who violates his or her pledge and provide a replacement elector. No elector has ever been penalized or replaced — nor have these laws been fully vetted by the courts.

Below is a list of states with laws attempting to bind electors (this list is missing Maryland; relevant information is included below).

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Relevant Provisions of State Laws Regulating Electors –

Alabama – “Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen. Each person so listed shall execute the following statement which shall be attached to the certificate or petition when the same is filed with the Secretary of State: “I do hereby consent and do hereby agree to serve as elector for President and Vice-President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such elector for _____ for President and _____ for Vice-President of the United States” (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached).”

Alaska – “The party shall require from each candidate for elector a pledge that as an elector the person will vote for the candidates nominated by the party of which the person is a candidate.”

California – “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent, one of whom, at least, is not an inhabitant of this state.”

Colorado – “Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.”

Connecticut – “The presidential electors shall meet at the office of the Secretary of the State at twelve o’clock, noon, on the first Monday after the second Wednesday of the December following their election and, as required by the Constitution and laws of the United States, shall cast their ballots for President and Vice President. Each such elector shall cast his ballots for the candidates under whose names he ran on the official election ballot, as provided in section 9-175. If any such elector is absent or if there is a vacancy in the electoral college for any cause, the electors present shall, before voting for President and Vice President, elect by ballot an elector to fill such vacancy, and the person so chosen shall be a presidential elector, shall perform the duties of such office and shall cast his ballots for the candidates to whom the elector he is replacing was pledged.”

Delaware –  ”In all cases, the electors chosen or appointed in this State for the election of a President and Vice-President of the United States under this chapter shall be required to cast their individual votes in accordance with the plurality vote of the voters in this State.”

District of Columbia – “Each person elected as elector of President and Vice President shall, in the presence of the Board, take an oath or solemnly affirm that he or she will vote for the candidates of the party he or she has been nominated to represent, and it shall be his or her duty to vote in such manner in the electoral college.”

Florida – “The Governor shall nominate the presidential electors of each political party. The state executive committee of each political party shall by resolution recommend candidates for presidential electors and deliver a certified copy thereof to the Governor before September 1 of each presidential election year. The Governor shall nominate only the electors recommended by the state executive committee of the respective political party. Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent.”

Hawaii – “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for president and that person for vice president of the United States, who are, respectively, the candidates of the political party or group which they represent, one of whom, at least, is not an inhabitant of this State.”

Maine – “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district.”

Maryland – “After taking the oath prescribed by Article I, § 9 of the Maryland Constitution before the Clerk of the Court of Appeals or, in the Clerk’s absence, before one of the Clerk’s deputies, the presidential electors shall cast their votes for the candidates for President and Vice President who received a plurality of the votes cast in the State of Maryland.”

Massachusetts – “The state committees of the respective political parties at a meeting called for the purpose shall nominate the presidential electors. The surnames of the candidates for president and vice president of the United States shall be added to the party or political designation of the candidates for presidential electors. Such surnames and a list of the persons nominated for presidential electors, together with an acceptance in writing signed by each candidate for presidential elector on a form to be provided by the state secretary, shall be filed by the state chairmen of the respective political parties not later than the second Tuesday of September. Said acceptance form shall include a pledge by the presidential elector to vote for the candidate named in the filing.”

Minnesota – “Each elector nominee and alternate elector nominee of a political party shall execute the following pledge: “If selected for the position of elector, I agree to serve and to mark my ballots for president and vice president for the nominees for those offices of the party that nominated me.” Each elector nominee and alternate elector nominee of an unaffiliated presidential candidate shall execute the following pledge: “If selected for the position of elector as a nominee of an unaffiliated presidential candidate, I agree to serve and to mark my ballots for that candidate and for that candidate’s vice-presidential running mate.” The executed pledges must accompany the submission of the corresponding names to the secretary of state.” §208.46: “An elector who refuses to present a ballot, presents an unmarked ballot, or presents a ballot marked in violation of the elector’s pledge executed under section 208.43 or 208.45, paragraph (c), vacates the office of elector, creating a vacant position to be filled under section 208.45.”

Michigan – “At any time before receipt of the certificate of the governor or within 48 hours thereafter, an elector may resign by submitting his written and verified resignation to the governor. Failure to so resign signifies consent to serve and to cast his vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated him. Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy.”

Mississippi – “Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen. Each person so listed shall execute the following statement which shall be attached to the certificate or petition when it is filed with the State Board of Election Commissioners: “I do hereby consent and do hereby agree to serve as elector for President and Vice President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such for for President and for Vice President of the United States” (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached). (4) The State Board of Election Commissioners and any other official charged with the preparation of official ballots shall place on such official ballots the words “PRESIDENTIAL ELECTORS FOR (here insert the name of the candidate for President, the word ‘AND’ and the name of the candidate for Vice President)” in lieu of placing the names of such presidential electors on the official ballots, and a vote cast therefor shall be counted and shall be in all respects effective as a vote for each of the presidential electors representing those candidates for President and Vice President of the United States. In the case of unpledged electors, the State Board of Election Commissioners and any other official charged with the preparation of official ballots shall place on such official ballots the words “UNPLEDGED ELECTOR(S) (here insert the name(s) of individual unpledged elector(s) if placed upon the ballot based upon a petition granted in the manner provided by law stating the individual name(s) of the elector(s) rather than a slate of electors).”

Montana – (2) The electors shall vote by separate ballots for one person for president and one for vice president of the United States. (3) The electors shall cast their ballots for the persons who received the highest number of votes for president and vice president of the United States, respectively, in the most recently conducted general election in the state of Montana.

Nebraska – “Each at-large presidential elector shall mark his or her ballot for the presidential and vice-presidential candidates who received the highest number of votes in the state and consistent with his or her pledge. Each congressional district presidential elector shall mark his or her ballot for the presidential and vice-presidential candidates who received the highest number of votes in his or her congressional district and consistent with his or her pledge. (4) A presidential elector who refuses to present a ballot, who attempts to present an unmarked ballot, or who attempts to present a ballot marked in violation of his or her pledge vacates the office of presidential elector.”

Nevada – “1. Except as otherwise provided in subsection 2, a nominee for presidential elector or an alternate may not serve as a presidential elector unless the nominee for presidential elector or the alternate signs a pledge in substantially the following form: ‘If selected for the position of presidential elector, I agree to serve as such and to vote only for the nominees for President and Vice President of the political party or the independent candidates who received the highest number of votes in this State at the general election.'”

New Mexico –  “A.   All presidential electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as presidential electors. B.   Any presidential elector who casts his ballot in violation of the provisions contained in Subsection A of this section is guilty of a fourth degree felony.”

North Carolina – “Any presidential elector having previously signified his consent to serve as such, who fails to attend and vote for the candidate of the political party which nominated such elector, for President and Vice-President of the United States at the time and place directed in G.S. 163-210 (except in case of sickness or other unavoidable accident) shall forfeit and pay to the State five hundred dollars ($500.00), to be recovered by the Attorney General in the Superior Court of Wake County. In addition to such forfeiture, refusal or failure to vote for the candidates of the political party which nominated such elector shall constitute a resignation from the office of elector, his vote shall not be recorded, and the remaining electors shall forthwith fill such vacancy as hereinbefore provided.”

Ohio – “A presidential elector elected at a general election or appointed pursuant to section 3505.39 of the Revised Code shall, when discharging the duties enjoined upon him by the constitution or laws of the United States, cast his electoral vote for the nominees for president and vice-president of the political party which certified him to the secretary of state as a presidential elector pursuant to law.”

Oklahoma – “Every party nominee for Presidential Elector shall subscribe to an oath, stating that said nominee, if elected, will cast a ballot for the persons nominated for the offices of President and Vice President by the nominee’s party. The oath shall be notarized by a notary public and filed with the Secretary of the State Election Board no fewer than ninety (90) days prior to the General Election. Failure of any party nominee to take and file the oath by such date shall automatically vacate his or her nomination and a substitute nominee shall be selected by the state central committee of the appropriate political party. It shall be the duty of the Secretary of the State Election Board to notify the chairman of the state central committee of the failure of any nominee to file the oath. Refusal or failure to vote by a Presidential Elector for the persons nominated for the offices of President and Vice President by the nominee’s party shall constitute a violation of the oath and shall result in the immediate forfeiture of the Elector’s office. In such event, the vote shall not be recorded, a vacancy shall be declared, and the Presidential Electors present shall proceed to fill such vacancy as provided in Section 10-108 of this title.”

Oregon – “A candidate for elector when selected shall sign a pledge that, if elected, the candidate will vote in the electoral college for the candidates of the party for President and Vice President. The Secretary of State shall prescribe the form of the pledge. The party shall certify the names of the selected candidates for elector to the Secretary of State not later than the 70th day before the election of electors.”

South Carolina – “Each candidate for presidential and vice-presidential elector shall declare which candidate for president and vice-president he will vote for if elected. Those elected shall vote for the president and vice-president candidates for whom they declared. Any person selected to fill a vacancy in the electoral college shall vote for the candidates the elector whose place he is taking had declared for. The declaration shall be made to the Secretary of State on such form as he may require not later than sixty days prior to the general election for electors. No candidate for president and vice-president elector shall have his name placed on the ballot who fails to make such declaration by the prescribed time. Any elector who votes contrary to the provisions of this section shall be deemed guilty of violating the election laws of this State and upon conviction shall be punished according to law. Any registered elector shall have the right to institute proper action to require compliance with the provisions of this section. The Attorney General shall institute criminal action for any violation of the provision of this section. Provided, the executive committee of the party from which an elector of the electoral college was elected may relieve the elector from the obligation to vote for a specific candidate when, in its judgment, circumstances shall have arisen which, in the opinion of the committee, it would not be in the best interest of the State for the elector to cast his ballot for such a candidate.”

Tennessee –  “The electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as electors if both candidates are alive.”

Utah – “Any elector who casts an electoral ballot for a person not nominated by the party of which he is an elector, except in the cases of death or felony conviction of a candidate, is considered to have resigned from the office of elector, his vote may not be recorded, and the remaining electors shall appoint another person to fill the vacancy.”

Vermont – “The electors shall meet at the state house on the first Monday after the second Wednesday in December next following their election, to vote for president and vice president of the United States, agreeably to the laws of the United States. If there is a vacancy in the electoral college on that day, occasioned by death, refusal to act, neglect to attend, failure of a person elected to qualify, or for other cause, the other electors present shall at once fill such vacancy viva voce and by a plurality of votes. When all the electors appear or a vacancy therein is filled, the electors shall perform the duties required of them by the Constitution and laws of the United States. If a vacancy occurs and is filled as aforesaid, the electors shall attach to the certificate of their votes a statement showing how such a vacancy occurred and their action thereon. The electors must vote for the candidates for president and vice president who received the greatest number of votes at the general election.”

Virginia – “Electors selected by the state convention of any political party as defined in § 24.2-101 shall be required to vote for the nominees of the national convention to which the state convention elects delegates. Electors named in any petition of qualified voters as provided in § 24.2-543 shall be required to vote for the persons named for President and for Vice President in the petition.”

Washington – “In the year in which a presidential election is held, each major political party and each minor political party or independent candidate convention that nominates candidates for president and vice president of the United States shall nominate presidential electors for this state. The party or convention shall file with the secretary of state a certificate signed by the presiding officer of the convention at which the presidential electors were chosen, listing the names and addresses of the presidential electors. Each presidential elector shall execute and file with the secretary of state a pledge that, as an elector, he or she will vote for the candidates nominated by that party. The names of presidential electors shall not appear on the ballots. The votes cast for candidates for president and vice president of each political party shall be counted for the candidates for presidential electors of that political party; however, if the interstate compact entitled the “agreement among the states to elect the president by national popular vote,” as set forth in RCW 29A.56.300, governs the appointment of the presidential electors for a presidential election as provided in clause 9 of Article III of that compact, then the final appointment of presidential electors for that presidential election shall be in accordance with that compact.”

Wisconsin – “The presidential electors, when convened, shall vote by ballot for that person for president and that person for vice president who are, respectively, the candidates of the political party which nominated them under s. 8.18, the candidates whose names appeared on the nomination papers filed under s. 8.20, or the candidate or candidates who filed their names under s. 8.185 (2), except that at least one of the persons for whom the electors vote may not be an inhabitant of this state. A presidential elector is not required to vote for a candidate who is deceased at the time of the meeting.

Wyoming – “All Wyoming electors shall vote for the candidates for the office of president and vice-president receiving the highest number of votes in the Wyoming general election.”

 

The Federalist No. 68: A Defense of the Electoral College

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As has become customary after a closely divided election (especially, one where the popular vote winner loses in the electoral college), there is a growing chorus of individuals calling for the abolishment of the electoral college. Just last night on Real Time With Bill Maher, former Attorney General Eric Holder called for an end to the electoral college.

I suspect these debates will continue not just this year, but in future elections, as well, and so I thought it might be useful to spotlight The Federalist No. 68, wherein Alexander Hamilton explains why the Framers created the electoral college system.

The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit, that the election of the president is pretty well guarded. I venture somewhat further; and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages; the union of which was to be desired.

It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analizing the qualities adapted to the station, and acting under circumstances favourable to deliberation and to a judicious combination of all the reasons and inducements, which were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.

It was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government, as the president of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several to form an intermediate body of electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each state, are to assemble and vote in the state, in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the union? But the convention have guarded against all danger of this sort with the most provident and judicious attention. They have not made the appointment of the president to depend on any pre-existing bodies of men who might be tampered with before hand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the president in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of electors. Thus, without corrupting the body of the people, the immediate agents in the election will at least enter upon the task, free from any sinister byass. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time, as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen states, in any combinations, founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

Another and no less important desideratum was, that the executive should be independent for his continuance in office on all, but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.

All these advantages will be happily combined in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state and vote for some fit person as president. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. But as a majority of the votes might not always happen to centre on one man and as it might be unsafe to permit less than a majority to be conclusive, it is provided, that in such a contingency, the house of representatives shall select out of the candidates, who shall have the five highest numbers of votes, the man who in their opinion may be best qualified for the office.

This process of election affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state; but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the constitution, by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says–

“For forms of government let fools contest–  That which is best administered is best.”

–yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration.

What is the Electoral College?

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The Constitution and the Electoral College

Article II, Section 1 of the Constitution provides

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, together with 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 Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List 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 shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

In Federalist No. 68, Alexander Hamilton said of the electoral college –

I venture somewhat further; and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages; the union of which was to be desired.

. . .

All these advantages will be happily combined in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state and vote for some fit person as president. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. But as a majority of the votes might not always happen to centre on one man and as it might be unsafe to permit less than a majority to be conclusive, it is provided, that in such a contingency, the house of representatives shall select out of the candidates, who shall have the five highest numbers of votes, the man who in their opinion may be best qualified for the office.

This process of election affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state; but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the constitution, by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration.

The electoral college was the result of a compromise at the Constitutional Convention in 1787. There were four possible options proposed for selecting a national executive: election by Congress, election by state governors, election by state legislatures and direct election. The idea of the electoral college was ultimately proposed by the Committee of Eleven on Postponed Matters. The proposal was met by approval by most of the delegates and was added to the Constitution with only minor changes.

The Twelfth Amendment, which was passed by Congress and ratified by the states, after the electoral college tie between Thomas Jefferson and Aaron Burr in 1800, modified Article II, Section 1 as follows –

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 same state 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. — 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 of the United States.

 

How it Works

When Americans cast their votes for a president and vice president, they are, in reality, voting for the slate of electors in their states pledged to those particular candidates. This group across the states is known collectively as the electoral college. The Constitution (as described above) assigns each state a number of electors. The number is based on the combined total of the state’s Senate and House of Representatives delegations. There are currently 538 electors.

According to the Congressional Research Service,

In 48 states and the District of Columbia, the entire slate of electors winning the most popular votes in the state is elected, a practice known as “winner-take-all” or “the general ticket” system. Maine and Nebraska use an alternative method, the “district system,” which awards two electors to the popular vote winners statewide, and one to the popular vote winners in each congressional district. Electors assemble in their respective states on the Monday after the second Wednesday in December (December 19 in 2016). They are expected, but not constitutionally bound, to vote for the candidates they represent. The electors cast separate ballots for President and Vice President, after which the electoral college ceases to exist until the next presidential election. State electoral vote results are reported to Congress and other designated authorities; they are then counted and declared at a joint session of Congress held on January 6 of the year after the election; Congress may, however, change this date by joint resolution. A majority of electoral votes (currently 270 of 538) is required to win, but the results submitted by any state are open to challenge at the joint session, as provided by law.

The final electoral college vote has reflected the national popular vote in 53 of 57 presidential elections. Andrew Jackson, Samuel Tilden, Grover Cleveland, and Al Gore all won the national popular vote, but lost in the electoral college.