Wednesday, October 21, 2020

Electoral College 101 - A Primer on How the System Works...and Doesn't Work

Over the last several weeks, I have been asked several questions about how the Electoral College operates.  I decided to spend some time today explaining, as best I can, how it operates.

WHO ELECTS THE PRESIDENT:  The Constitution provides that electors, equal to the number of federal representatives and senators each state has, will choose the President.  A later constitutional amendment gave the District of Columbia three electoral votes.  If you do the math, the total number of electors equals 538.  To be elected President, a candidate needs at least 270 electoral votes.  More on that later.

WHY ELECTORS, AND NOT THE PEOPLE, CHOOSE THE PRESIDENT:  In Federalist Paper #68, Alexander Hamilton explained why the Founders chose to have electors choose the President:

It was desirable 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 preestablished 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 analyzing the qualities adapted to the station, and acting under circumstances favorable 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 such complicated investigations.

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.

Federalist Paper #68 wraps up with this assurance to "The People of New York":
        The process of election affords a moral certainty, that the office of President will never 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. 
The Founders believed ordinary citizens did not have the information to assess presidential qualities and might be too inflamed by the passions of the moment to exercise good judgment. So, the Founders created a deliberative body of wise men who would make an informed, reasoned decision on who would be the best President.  While conservatives and liberals offer other reasons for why the Founders chose the Electoral College, those reasons amount to nothing more than revisionist history.  In short, the Founders adopted the Electoral College because, while they appreciated democracy, they also feared its excesses.

WHO SELECTS THE ELECTORS?:  The Constitution leaves it to state legislatures to appoint their state's electors.  Early in our nation's history, that's exactly what happened. But after a few elections,  states began delegating to the voters the selection of electors.  Today, 48 of 50 states have adopted a
winner-take-all popular vote system for choosing electors, i.e. if  Republican nominee Donald Trump wins Indiana by one vote, all eleven Indiana electors later casting ballots for the Hoosier state will be Republican electors.   For the record, two states - Nebraska and Maine - award electors according to who wins the states' congressional districts, plus two electors for whichever candidate wins statewide.  

WHO ARE THE ELECTORS?:  Prior to the election, the major political parties (and independent presidential candidates) file a list of citizens (equal to the total electoral vote of that state) who would be electors with each state's Secretary of State.  These are generally party loyalists, although the Constitution prohibits them from holding federal office.  

ELECTORS MEET TO CAST VOTES:  The electors of each state who are elected meet in their state's capitol in mid-December to cast their votes for President.  This year, this day (the Monday after the second Wednesday in December) falls on December 14th.

FAITHLESS ELECTOR:  A "faithless elector" is an elector who, once selected to vote for President, fails to vote for his or her party's candidate.  While that hasn't happened much over the years, it did happen seven times in 2016.

BINDING FAITHLESS ELECTORS TO POPULAR VOTE:  In a decision handed down this Spring, the United States Supreme Court has said that states may require electors to follow the popular vote.  But states employ different ways of requiring electors to follow the popular vote.  Fourteen states, including Indiana, remove the faithless elector and replace him/her with an elector who will ratify the popular vote.  Nineteen states do not impose any penalty or replace a faithless elector.   A few states fine the faithless elector, say a $500 or $100, and/or make it a criminal offense to not vote according to the popular vote.

CAN STATE LEGISLATURES REPEAL POPULAR VOTE SELECTION OF ELECTORS AND SELECT ELECTORS THEMSELVES?:  In Bush v. Gore, the Supreme Court answered this question in the affirmative.
The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).
Although the issue would not doubt end up in litigation, it seems quite possible that a Republican- dominated state legislature could, looking at disputed popular vote results in its state, decide to pick the electors instead.  It is not even clear from the wording of the Constitution, that a state's Democratic Governor could veto such a move.  Nonetheless, one could expect litigation to ensure over such a maneuver.

DEADLINE FOR STATES TO RESOLVE ELECTION DISPUTES:   Congress passed the Electoral Count Act of 1887, which set a "safe harbor" deadline for states to resolve election disputes ahead of electors meeting in their state capitols to cast their ballots. This election, the safe harbor deadline is December 8th.  (The electors meet on December 14th.)  

WHAT HAPPENS IF ELECTION DISPUTES ARE NOT RESOLVED BY SAFE HARBOR DEADLINE?:  If state election results are in dispute, you could end up with: 1) no electors selected for the state; 2) dueling slates of electors selected if the Governor and/or state Secretary of State certifies one slate, and the legislature certifies another slate.  If these dueling slates happen, both houses of Congress would have to agree on which slate to accept, which is unlikely since Democrats control the U.S. House and the Republicans control the Senate.  According to the Electoral Count Act of 1887, if the two houses of Congress cannot decide on the dueling slate of electors, the state's governor gets to break the tie.  But that seems to contradict the U.S. Constitution which says state legislatures choose the electors.  Obviously such a dispute would end up in the courts.

WHAT EXACTLY IS A "MAJORITY" OF ELECTORAL VOTES?:  A presidential candidate has to receive a majority of the 538 possible electoral votes, i.e. 270, to be elected, otherwise the U.S. House decides the election, voting by delegation. But what if because of election disputes, some states do not cast electoral votes?  The language of the 12th Amendment, which modified the electoral college provision in the body of the Constitution, says that a presidential candidate has to win a majority of the electors who are "appointed."  So if a state does not select electors, for whatever reason, it would seem the vote needed for a majority would be correspondingly less.

WHO DECIDES THE ELECTION IF NO CANDIDATE RECEIVES AN ELECTORAL COLLEGE MAJORITY?:  According to the Constitution, if no candidate receives a majority of the electoral college vote, the U.S. House will pick the President (among the top three vote-getters in the Electoral College), while the Senate will select the Vice-President (assuming the VP candidates also did not get a majority).  This is called a "contingent election."  But in deciding the contest for president, the U.S. House votes by delegation.  Currently, Republicans have majorities in 26 House delegations, with Democrats controlling 22 with two tied.  There is an outside chance that Democrats could win a majority of delegations in the 2020 elections.  It is probably new Congress, which would elect the President and Vice-President, in a case where there is no electoral vote majority.  But even that is not clear.

WHAT HAPPENS IF THERE IS NO MAJORITY IN ELECTORAL COLLEGE AND U.S. HOUSE?:  Definitely unchartered territory.   The Presidential Succession Act of 1947 provides that if no one is qualified to be President or Vice-President, the Speaker of the House (currently Nancy Pelosi) becomes "acting" President until someone qualifies.  If the Speaker cannot serve, then the "acting Presidency" passes to the Senate President Pro Tempore (currently Charles Grassley), and then to President's cabinet, starting with Secretary of State.  The Constitution though suggests that only executive officials can succeed the President. At the very least, a Speaker Pelosi or Senate Pro Tem Grassley would have to resign their legislative positions to serve as acting President.

The Electoral College is a convoluted mess in need of reform.

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