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September 2015 Policy Study, Number 15-8

   

The Electoral College: Explaining a Constitutional Mystery and Defending American Constitutionalism

   

Electoral College Explained

   

 

The Electoral College is one of the most misunderstood aspects of the Constitution. For many citizens it is a mystery, and just as with the entire Constitution, there needs to be a greater emphasis on civic education in learning and understanding the Constitution as a whole. Before getting involved in some specifics regarding the Electoral College, it is necessary to explain and define how it works. Tara Ross, a lawyer, historian, and the author of Enlightened Democracy: The Case for the Electoral College argues that “despite claims to the contrary, the constitutional process of selecting a President, while not straight-forward as a direct popular vote, is not terribly complicated either.”[4] Ross provides a simple way of explaining the Electoral College:

 

It is easiest to think of the election in two phases: First, the Electoral College vote, and second, the contingent election procedure, which is used only if no candidate wins a majority of electoral votes.[5]

 

Article II, Section I of the Constitution is where the Electoral College can be found. Article II of the Constitution specifically deals with the Executive Branch of government. Article II, Section I states:

 

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 [choose] 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 [choose] the President. But in chusing [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. 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 [choose] from them by Ballot the Vice President.

 

The Congress may determine the Time of chusing [choosing] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.[6]

 

When the President and Vice President are elected every four years, voters, when they cast their ballots, are actually voting for that particular candidate’s “electors”:

 

The process starts with the nomination of partisan slates of electors by party conventions, primaries, or committees in each state. The number of electors in each state is equal to its numbers of Representatives and Senators; the Twenty-third Amendment allots three electors for the District of Columbia, making a total electoral vote of 538.[7]

 

A presidential candidate needs 270, or a majority of the electoral votes, in order to win the presidential election. Most states with the exception of Maine and Nebraska, whose “electoral votes are divided proportionally to the popular vote in each district,” are based on the winner-take-all principle.[8] This means whichever presidential candidate wins the majority vote, then that specific candidate wins the entire state’s electoral votes. “The electors pledge themselves to vote for their party’s candidates for President and Vice President, although the Constitution permits them to use discretion.”[9] Most states (at least half) require electors to support their party’s candidates for President and Vice President.[10] As columnist George F. Will wrote: “America has direct popular election of Presidents, but it has it within the states.”[11]

 

Therefore the Electoral College is a vote of the people, because citizens in each state are expressing their presidential preference by casting their ballots for a specific candidate’s electors whether they are Republican or Democrat. In the aftermath of the November general election electors will meet in their state capitals and vote, and in January the electoral ballots are officially counted and certified before a joint session of Congress.[12] When there is no one candidate who wins a majority of the electoral votes, the election for President is decided in the House of Representatives, each state getting one vote. This occurred in 1824 when the House of Representatives selected John Quincy Adams to be elected President over the furious objections of Andrew Jackson and his supporters. In regard to the Vice President, the Senate decides on who will serve in that respective constitutional office.

 

The Electoral College has changed since it was created by the Founding Fathers, especially with the rise of our two-party system and with the Twelfth Amendment to the Constitution:

 

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.[13]

 

The Twelfth Amendment brought clarity to the Electoral College. Originally electors could vote for two individuals and in 1796 the Federalist candidate John Adams, who had served as our first Vice President under President George Washington, was elected President, but the Federalist political party was divided on who would become Vice President and that resulted in Thomas Jefferson, the leader of the Democratic-Republicans and a political enemy of the Federalists, to be elected Vice President.  The Twelfth Amendment allowed electors to vote for a President or Vice President (party-ticket), which solved the problem.  As Tara Ross wrote:

 

The 12th Amendment and Article II procedures are fairly similar, except the original Article II provision did not provide for separate voting for President and Vice President. Instead, the candidate with the most votes became President and the runner-up became Vice President. During the country’s fourth presidential election in 1800, this combined voting procedure created problems. As a result, the 12th Amendment was adopted and governed the next presidential election in 1804.[14]

 

“America’s method of presidential election remains largely as it was first conceived by the Founders in the summer of 1787,” argues Ross.[15]

 

   

 

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