(Editor's note: this article originally appeared on Poynter.org and is being republished with permission from the author.)
Three times in United States history, the person who became president did not receive the most votes — 1824, 1876, 2000.
Polls have consistently shown a large majority of Americans want the system changed. The National Popular Vote bill would change the way we elect presidents; it has passed in nine state legislatures.
So why do we have this system and how does it work? Permit me to go back a couple of hundred years. Stay with me, this won’t take long.
How the System Works
The main framework of the Electoral College comes from Article II Section 1 of the Constitution and was revised by the 12th Amendment in 1804.
When you vote for the President in the United States, you are not actually voting for your favorite candidate. You are voting for a slate of electors. There are 538 electors, typically people who are active in state and local politics. Oddly, even for a federal election, each state can have different rules about how to elect the electors. Usually they are elected at a state political convention. It would be a rare voter who could name more than one or two electors, even though the electors are the core of the voting process.
Each state gets one elector per member of Congress. So some states like Florida have more electors than Wyoming. (See state-by-state list.) It is a winner-take-all system, so whoever wins the popular vote in a state wins all of that state’s electors. There are two exceptions, Nebraska and Maine, where the electors are doled out differently. In those states, whoever wins the popular vote gets two electoral votes. Then the rest are awarded by whoever wins each Congressional district.
States can decide if they are winner-take-all states, or if they are proportional by Congressional districts or if they want to dole out electors by popular vote. It is a state decision. But the federal government requires electors and decided how many each state gets. So states could meaningfully change the system without Congress changing the Constitution.
Even though Washington, D.C. is not a state, the District gets three electoral votes as set out in the Constitution.
The Constitution does not allow electors to be sitting Members of Congress.
In some of this country’s earliest elections, the popular vote didn’t even elect the electors. In 1824, for example, one fourth of the states used a system where the state legislature, not voters, chose electors.
On December 17, 2012, the electors in each state meet to sign the “Certificates of Vote.” Then on January 6, 2013, the state’s certificates are examined and electoral votes counted. Whomever has 270 electoral votes is the new President.
There are lots of electoral systems around the world. Look at this list of systems. Some make our system seem logical.
What if Election Day produces a tie?
In a tight election year like this one, the “tie” is a “what if” parlor game worth playing. If President Obama won Ohio, Wisconsin and New Hampshire, and Romney won all of the other “swing states” and other states went as expected, it would result in a dead-on electoral tie: 269 to 269. The Washington Post has concocted five ways a tie could happen.
The first thing that would happen would be recounts and legal challenges in the most contested races. Think of the 2000 election on a larger scale. It could last months and cost many millions of dollars.
Then, if the courts and recounts don’t solve the issue, we turn to the 12th Amendment to the Constitution. A few key parts:
“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.”
So, in a tie, the 12th Amendment tosses the election into the hands of the House of Representatives.
In 1800, Thomas Jefferson and Aaron Burr got equal numbers of electors and the House of Representatives had to vote 36 times to break the tie. In fact, the 12th Amendment was a direct product of that debacle. Before that election, the top vote getter was President, the guy who ran second was Vice-President.
In 1824, Andrew Jackson got 151,271 votes, John Quincy Adams got 113,122. Jackson got the most electoral votes, but not enough to win a majority since there were three other contenders in the race. The election went to the House to resolve and John Quincy Adams won the election there. According to election lore, Adams cut a deal with Henry Clay, the fourth place candidate. Adams appointed Clay to be Secretary of State. Four years later, Jackson got his revenge and beat Adams handily.
But when an election goes to the House, things get weird. Under the 12th Amendment each state gets one vote. That’s right, Rhode Island’s vote is equal to California’s. Read it for yourself:
“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 House members from each state must agree on who will get their vote. What a fight that would be.
You might assume that House members would vote for whomever carried their state, but that is not required. Some states might say they are unable to reach a consensus and not vote at all.
So, a candidate needs 26 electors to win. The House can vote again and again to break the tie.
While the House is locked up in a 25 to 25 tie, the U.S. Senate steps in to choose a Veep. Each Senator gets one vote. So, once again, all states are equal regardless of population. The candidate who gets 51 Senate votes is the new Vice-President.
Then, if the Senate cannot come to an agreement on a Vice-President before Inauguration Day, the Speaker of the House serves as acting President.
If the Senate reaches agreement on a VP and the House remains deadlocked, the Vice President acts as President.
Why the system works
The National Archive says in the last 200 years more than 700 bills have been introduced in Congress to change the system. After the 2000 election, a flurry of bills floated around Congress and went nowhere. Some suggested we just do a direct vote, whoever gets the most votes wins. Some said it should be based on Congressional district, more like what Maine does. Some said it should be a coalition based majority system, more like Canada.
Some proposals said a candidate should have to get 40 percent of the national vote or face a run-off. Imagine that, a primary, a general election and then a run-off? The rationale is that a president should have at least 40 percent support or the country would be too divided to stand behind him or her.
Many of the proposed reforms did away with electors.
The strongest argument for the current system is that it forces candidates to build a national coalition of voters. They have to stitch together big and small states to get the needed electors.
Eleven states account for more than half of the population. California, Florida, Georgia, Illinois, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas have the majority of voters.
In a popular vote system, small states might never see the candidates, who would spend their time in vote-rich, highly-populated states. But those who favor changing the system point out that the most populated states are evenly split. The big 11 states are split between Democrats and Republicans. So the smaller states would be necessary to break a tie.
Some argue the electoral system is right for a country of our size because in a tight election it would take forever to recount and litigate every state outcome. The nation would be thrown in a tizzy. The electoral system, even with its flaws, settles the matter with a system that has worked for two centuries.
There is also a state’s rights argument. Each state currently makes its own rules and counts electors and sends them to the federal government. A national popular system would be more of a federal election.
How the system fails
The more than 200-year-old system is clearly not one-person-one-vote. Sometimes the person who gets the most votes doesn’t get elected. The electors get adjusted after each census. But population shifts happen faster than that.
Plus in a winner-take-all state, the people who vote for the losing candidate lose all of their voice. It might as well have been a 100 percent vote, even if the winner won by only one vote. Opponents of the Electoral College say the current system allows candidates to write off states where they have no chance of capturing a majority. But if they could pick up pieces of states, Congressional districts for example, they might visit more states during the campaign.
Under the current system, third party candidates are marginalized. But under a proportional system, where electoral votes are doled out based on the proportion of votes you receive, a third party candidate could get enough electoral votes to become a significant power broker. A candidate who got say 5 percent of the electors could toss the entire race into the House to decide.
Under the current system, states appear Bluer and Redder than they actually are. There is no room for nuance.
In almost half of the states, electors don’t have to vote for the candidate they were elected to represent. Seriously. Even though a candidate wins the electoral vote, in those states the elector is not bound by law to vote for the winning candidate. The U.S. Archives website explains:
“There is no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their States. Some States, however, require Electors to cast their votes according to the popular vote. These pledges fall into two categories—Electors bound by State law and those bound by pledges to political parties.”
“The U.S. Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some State laws provide that so-called “faithless Electors”; may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.”
“Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of Electors have voted as pledged.”
It is rare, but it does happen. Project Vote Smart says, in fact, it happens for all kinds of reasons:
“On 158 occasions, electors have cast their votes for president or vice president in a different manner than that prescribed by the legislature of the state they represent. Of those, 71 votes were changed because the original candidate died before the elector was able to cast a vote. Two votes were not cast at all when electors chose to abstain from casting their electoral vote for any candidate. The remaining 85 were changed by the elector’s personal interest or perhaps by accident. Usually, the faithless electors act alone.”
The Congressional Research Service said “the faithless vote” has never influenced the outcome of the election.
The U.S. Archives assembled a list of which states require electors to vote for a specific candidate. Check the list to learn more about your state’s law.
Learn more from some of the places I went to flesh out this story:
The Congressional Research Service has written briefings on the Electoral College system, including citations to various proposed reforms over the decades.
I learned a lot from this Smithsonian Magazine article on the Electoral College vote of 1800. The craziness of that vote set the stage for the passage of the 12th Amendment, but it also gives insight as to the kind of chaos that a locked up vote would cause.
The Washington Post calculates as many as 32 ways the election could end in an electoral tie. But if it did, the Post concludes,”a tie, in all likelihood, would lead to President Mitt Romney.”
Harper’s Weekly set up a special website that explores the awful election of 1876-77 in which Governor Samuel J. Tilden of New York seemed to have gotten more votes than Rutherford Hayes of Ohio. But questions arose over the legitimacy of many elector votes and in an effort to resolve the problems, a special commission was formed. The commission dissolved into a political quagmire of corruption and even offers of vote selling.
The AP explores various “nightmare” scenarios that could develop Election Night.
See how other countries elect leaders. This essay from a Georgetown professor describes the difference between the “plurality” system and the “majority” and “proportional” systems. Throughout history, some states have changed how they award electors.
- A list of election resources worldwide, useful in comparing systems.