How Does the Electoral College Work?

Once every four years, eligible citizens vote to elect their candidate to be the next president of the United States. Despite what most people think, citizens do not vote for their chosen presidential candidate. Instead, they vote for the “slate of electors” who pledge to cast their votes on behalf of the citizens in the electoral college.

How Did the Electoral College Come About?

The framers of the U.S. Constitution established the concept of the Electoral College. This occurred during the Convention in Philadelphia, which ended in September 1787. The framers saw it as a compromise between allowing highly populated areas to have excessive voting powers and letting Congress elect the president.

How Are the Electoral Votes Distributed Among States?

The Constitution requires each state to have electors equal to its congressional representation. This means each state gets votes equal to the number of its congressional delegates and senators. The number of electors a state receives depends on its population. California, for example, has 55 electoral votes, while Alaska only has three.

The total of 538 electoral votes comprises 435 Representatives, 100 Senators, and three electors from the District of Columbia, as outlined by the 23rd Amendment. Ultimately, the presidential candidate needs at least 270 electoral votes to become the president-elect.

Is the Electoral Process the Same in All States?

Maine and Nebraska follow different approaches to apportioning electoral votes. These two states give electoral votes by congressional district. They do, however, reserve two extra votes for the winner. The remaining 48 states follow a winner-take-all approach, allocating all the electoral votes to the winner regardless of how close the votes were.

Understanding the Concept of the Electoral College

Under Article II, Section 1, the U.S. Constitution establishes the Electoral College process. It's a process where 538 electors meet after voters cast their ballots to elect the president and vice president of the United States.

In every state, political parties choose electors for each candidate running for the presidency. This usually happens at their respective state conventions. On Election Day, the voters will vote for the electors. In most states, the electors will vote for the candidate with the majority votes.

After the election, the state governor prepares a "certificate of ascertainment." That has the list of the electors. The certificate also officially declares the candidate as the winner in that state.

On the first Monday after the second Wednesday in December, the electors meet to vote for the president and vice president. The Congress receives the number of votes sent by the electors. Then, the current vice president, in their capacity as the president of the Senate, presides over the counting of votes. This happens during a joint session of Congress on Jan. 6.

The president of the Senate reads these votes to the members of the House and the Senate. The candidate with the majority number of votes is sworn in as president on Jan. 20. This process is seen as a crucial part of the peaceful transition of power.

Recent Electoral Controversy and Capitol Incident

In the 2020 presidential election, Joseph R. Biden, Jr. won the electoral vote against Donald J. Trump. Biden secured 306 electoral votes, while Trump secured 232. Trump and his supporters alleged electoral fraud. However, lower courts and the Supreme Court discovered no evidence to support such claims. The dispute led to the infamous moment on Jan. 6, 2021, wherein numerous Trump supporters stormed the U.S. Capitol.

The incident resulted in multiple injuries and deaths among rioters and Capitol and Metropolitan police officers. It also led to the impeachment of Trump, citing incitement of insurrection, although the Senate later acquitted him. This event highlighted the Electoral College's part in the presidential election process.

How Are the Electors Selected?

It is the responsibility of the state legislature to select electors. In each state, political parties pick electors. It is a two-part process. The first part is when the political parties in every state pick potential electors before the general election. The second part is during the general election. Here, voters pick their state's electors by casting a ballot.

But the specifics vary from state to state. Often, political parties choose the electors for their party. Sometimes, the electors themselves might campaign to get the spot. The Constitution also has limitations on who can serve as an elector.

Does the Electoral College Work?

The Electoral College and popular votes have aligned in most presidential elections. But, there were some instances where the president lost the popular vote and won the Electoral College. The most recent were George W. Bush in 2000 and Donald Trump in 2016.

George W. Bush vs. Al Gore in 2000

The presidential election of 2000 was one of the most notable in U.S. history. It was the first inversion of the popular and electoral votes since 1888. During the 2000 presidential election, Al Gore had around 543,000 more votes than George W. Bush. However, the outcome depended on the 25 electoral votes from Florida, which Bush won. By winning Florida, Bush won the electoral vote by 271 compared to Gore's 266.

Donald Trump vs. Hillary Clinton in 2016

In 2016, Republican candidate Donald Trump ran against Democratic candidate Hillary Clinton. Clinton earned over 2.8 million more votes than Trump. However, Trump won the Electoral College with 304 votes, with Clinton only securing 227 votes.

The Electoral College secured Trump's presidency. Attributing Trump's victory to his winning key swing states, including Pennsylvania, Michigan, and Wisconsin. His win in these key states, despite losing in the popular vote by a big margin, emphasizes the decisive role of the Electoral College in the outcome of U.S. elections.

What Happens if Both Contenders Get the Same Number of Electors?

An Electoral College tie is very rare. But, a tie is possible if both candidates each get 269 votes. If that happens, It requires a contingent presidential election.

According to the 12th Amendment of the U.S. Constitution, the House of Representatives steps in in case of an electoral tie. The members vote to choose one of the candidates tied for the presidency. Every state gets one vote. This is regardless of the number of representatives that each state has. The candidate who earned the simple majority of votes becomes the president.

What Are Faithless Electors?

Electors who vote contrary to the popular vote are called "faithless electors." In 2016, there were 10 faithless electors out of 538 total electors in the general election.

Surprisingly, there is no constitutional provision prohibiting electors from being faithless electors. But, the Supreme Court rulings support state laws that enforce adherence to the Electoral College. Thirty-two states have faithless elector laws, including 15 that penalize electors for voting against their pledge or remove them or their vote. In Washington, for instance, there is a $1,000 fine for being a faithless elector.

The U.S. Supreme Court ruling in Chiafalo v. Washington in July 2020 held that laws like Washington State's do not violate the Constitution. It went so far as to say requiring electors to vote alongside the popular vote "accords with the Constitution." Electors, the Court held, "are not free agents."

The National Association of Secretaries of State's summary on the state laws about presidential electors can be useful to learn about the procedures for selecting electors and the fines associated with faithless electors.

Was Your Right To Vote Violated?

If you are concerned about the impact of the electoral process on your rights or believe your right to vote was compromised, it is vital to seek legal advice. A civil rights attorney can give you the support and guidance you need to understand this complex issue. They can clarify your voting rights and ensure that your voice is heard. Do not hesitate to contact a civil rights attorney to secure your fundamental democratic rights.

Additional Resources To Learn More

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Learn about the history of the electoral college — including why it was started, and whether it still works today — in our interview with election law expert David Schultz.