H o w the Electoral College System Works

Constitutional Origins and Current Function

he President and Vice President of the United States • by providing the “constant two” “senatorial” or at-large
T are chosen indirectly by a group of persons elected
by American voters. These officials are known as electors,
electors, afford the “smaller” States some additional le­
verage, so the election process would not be totally
and the institution is referred to collectively as the Elec­ dominated by the more populous states;
toral College.
Established in 1787 as one of several compromises in • preserve the presidency as independent of Congress for
the Constitution, the Electoral College and an array of sub­ election and reelection; and
sequent Federal and State laws and political party practices
together comprise the Electoral College system. It has been • generally insulate the election process from political ma­
criticized by some as an undemocratic anachronism, but nipulation.
praised by others as a pillar of political stability and Ameri­
can federalism. In the final analysis, the Electoral College method of
electing the President and Vice President was perhaps the
best deal the delegates felt they could get — seemingly the
■ Constitutional Origins only one on which a consensus could be formed— and one
of many compromises that contributed to the convention’s
The Constitutional Convention of 1787 considered sev­ success. Alexander Hamilton expressed the delegates’ satis­
eral methods of electing the President, including selec­ faction with, and perhaps their relief concerning, the solu­
tion by Congress, by the governors o f the States, by the tion they had crafted, when he wrote this of the Electoral
State legislatures, by a special group of Members of C on­ College in The Federalist-.
gress chosen by lot, and by direct popular election. None
of these alternatives, however, proved satisfactory to the The mode of appointment of the Chief Magistrate
convention delegates. of the United States is almost the only part of the
Late in the convention, the matter was referred to the system, of any consequence, which has escaped with­
Committee of Eleven on Postponed Matters, which devised out severe censure, or which has received the slight­
the Electoral College system in its original form. This plan, est mark of approbation from its opponents. ... I
which met with widespread approval by the delegates, was venture somewhat further, and hesitate not to affirm
incorporated into the final document with only minor that if the manner of it be not perfect, it is at least
changes. As devised by the committee, the Electoral Col­ excellent. It united in an eminent degree all the ad­
lege met several standards. It sought to: vantages the union of which was to be wished for.

• reconcile and balance differing State and Federal interests; The Original Constitutional System. The Constitution
gave each state a number of electors equal to the combined
• give the State legislatures the authority to provide their total of its Senate and House of Representatives member­
preferred means of choosing the electors, including by ship. The electors were to be chosen by the states “in such
popular vote, selection by the legislature itself, or any M anner as the Legislature thereof may direct” (Article II,
other method; Section 1). Qualifications for the office were broad: the only
persons prohibited from serving as electors are senators,
From the Library o f Congress, Congressional Research Service representatives, and persons “holding an Office of Trust or
report The Electoral College: How It Works in Contempo­ Profit under the United States.”
rary Presidential Elections, April 13,2016. See https:llfas.org/ In order to forestall partisan intrigue and manipulation,
sgp/crs/misc/RL3261l.pdf each State’s electors were required to assemble separately in

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their respective states to cast their ballots rather than meet Thomas Jefferson and his running mate, Aaron Burr, leav­
as a body in a single location. ing the election to be decided in the House of Representa­
At least one of the candidates for whom the electors tives. The constitutional crisis resulting from the election
voted was required to be an inhabitant of another state. This of 1800 led to the Twelfth Amendment, which was proposed
was intended to counter what the framers feared would be by Congress and speedily ratified by the States.
a provincial insularity once George Washington, the indis­
pensable figure who was universally expected to be the first
President, had left the political scene. By requiring one of ■ The Electoral College Today
the candidates to be from somewhere else, the convention
delegates hoped to prod the electors to look beyond the Notwithstanding the founders’ efforts, the Electoral Col­
borders of their own state or region in search of national lege system almost never functioned as they intended, but,
candidates qualified and fit to serve as President. as with so many constitutional provisions, the document
A number of votes equal to a majority of the whole prescribed only the system’s basic elements, leaving ample
number of electors was necessary to elect. This requirement room for development. As the republic evolved, so did the
was intended to insure that the winning candidate enjoyed Electoral College system, and, by the late nineteenth cen­
broad support, while election by the House of Representa­ tury, the following range of constitutional, Federal, and State
tives was provided as a default method in the event of Elec­ legal and political elements of the contemporary system were
toral College deadlock. Finally, Congress was empowered in place.
to set nationwide dates for choice and meeting of electors.
Who Are the Electors? The Constitution, as noted earlier
The Twelfth Amendment Repairs Flaws in the Original in this report, states what the electors may not be; that is, it
System. The original method of electing the President and prohibits senators, representatives, and persons holding an
Vice President, however, proved unworkable. Under this sys­ “Office ofTrust or Profit under the United States” from serv­
tem, each elector cast two votes for two different candidates ing. In effect, this language bars not only Members of the
for the office of President, but no votes for Vice President. two houses of Congress, but any person who is an employee
The candidate who received the most electoral votes was of the United States government: justices, judges, and staff
elected, provided he received a number of votes equal to a of the U.S. courts and the Federal Judiciary; all political em­
majority of the whole number of electors — not a majority ployees of the Legislative and Executive Branches; civilian
of electoral votes. Nobody actually ran for Vice President employees o f the U.S. Government, that is, “civil servants”;
— the runner- up in the presidential contest was elected to and U.S. military and law enforcement personnel.
the second office. This system, which was intended to bring In practice, the two major political parties tend to nomi­
the two best qualified candidates to office, never anticipated nate a mixture of well-known figures, such as governors and
the early growth of political parties and factions, each of other State and local elected officials, party activists, local
which offered a joint ticket of two candidates — one for and State celebrities, and “ordinary” citizens for the office
President and one for Vice President. of elector.
By the third election, in 1796, the nascent political While they may be well-known persons in their States,
parties of the day, Federalists and anti-Federalists (also electors generally receive little recognition as such. In fact,
known as Jeffersonians or Republicans), each offered a in most States, the names of individual elector-candidates
joint ticket. Under the original arrangement, the only way do not appear anywhere on the ballot; instead only those
to make the system work was for all of the party’s electors of the presidential and vice presidential candidates of the
to cast one of their two votes for the recognized presiden­ parties or other groups that nominated the elector-candi­
tial candidate, and all but one of the electors cast their sec­ dates appear, sometimes prefaced by the words “electors for.”
ond votes for the vice presidential candidate. One elector Moreover, electoral votes are commonly referred to as hav­
would be instructed to withhold his second vote for the ing “been awarded” to the winning candidates, as if no
designated vice presidential candidate, so that the two can­ human beings were involved in the process.
didates would not tie the vote and throw the election to
the House. How Are Electoral Votes Allocated Among the States?
This cumbersome system broke down almost immedi­ The Constitution, as noted previously, gives each State a
ately, in 1800, when a Republican elector failed to withhold number of electors equal to the combined total of its Sen­
his second vote from the acknowledged vice presidential ate membership (two for each state) and House of Repre­
candidate. This led to a tie between presidential candidate sentatives delegation (currently ranging from 1 to 53,

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depending on population). The Twenty-third Amendment General Election Day. Elections for all Federal elected
provides an additional three electors to the District of Co­ officials are held on the Tuesday after the first Monday in
lumbia. The total number of electoral votes per State, based November in even-numbered years; presidential elections
on the most recent (2010) census, ranges from three, for are held in every year divisible by four. Congress selected
seven States and the District of Columbia, to 55 for Cali­ this day in 1845; previously, States held elections on dif­
fornia, the most populous State. ferent days between September and November, a practice
These totals are adjusted following each decennial cen­ that sometimes led to multiple voting across State lines and
sus in a process called reapportionment, which reallocates other fraudulent practices. By mandating a single presi­
the number of Members of the House of Representatives dential Election Day, Congress sought to eliminate such
to reflect changing rates of population growth or decline irregularities.
among the States. Thus, a State may gain or lose electors Other factors also contributed to Congress’s choice of
following reapportionment, as it gains or loses representa­ a November Election Day. By tradition, November was
tives, but it always retains its two senatorial or at-large elec­ chosen because the harvest would have been gathered, and
tors, and at least one more reflecting its House delegation. the Nation’s predominantly rural farm population could
Electoral votes will next be reallocated following the 2020 spare the time for a day-long trip to the county seat, where
census, an alignment that will be in effect for the 2024 and voting was usually conducted. The choice of Tuesday pro­
2028 elections. vided a full day’s travel time between Sunday, which was
widely observed as a day of worship and rest, and Election
The Electors’ Task: Ratifying the Voters’ Choice. Presi­ Day. The choice of Tuesday after the first Monday also
dential electors in contemporary elections are expected, and, avoided potential congestion at the county seat on the first
in many cases pledged, to vote for the candidates of the party day of the month, which was generally the day on which
that nominated them. While there is considerable evidence local courts convened, or on Wednesday, which was often
that the Founders intended that they would be independent, market day. Finally, travel was also easier during this season
weighing the merits of competing presidential candidates, of the year, before winter had set in, especially in northern
the electors have been regarded as agents of the public will States.
since the first decade under the Constitution. They are ex­
pected to vote for the candidates of the party that nomi­ The Electors Convene and Vote. The Twelfth Amendment
nated them. “Faithless” electors provide an occasional requires electors to meet “in their respective States.” As
exception to that accepted rule. noted previously, this provision was intended by the
Founders to deter “intrigue” and manipulation of the elec­
Disregarding the Voters’ Choice: Faithless Electors. Not­ tion, by having the State Electoral College delegations meet
withstanding the tradition that electors are bound to vote simultaneously but in separate locations. Federal law sets
for the candidates of the party that nominated them, indi­ the first Monday after the second Wednesday in December
vidual electors have sometimes broken their commitment, as the date on which the electors meet.
voting for a different candidate or for candidates other than The same law set the “safe harbor” provision to govern
those to whom they were pledged; they are known as “faith­ disputed popular election returns in any State. When presi­
less” or “unfaithful” electors. Although 24 States seek to dential election returns are disputed in any State, if that
prohibit faithless electors by a variety of methods, includ­ State, prior to Election Day, has established procedures to
ing pledges and the threat of fines or criminal action, most resolve such disputes, and if it has used these procedures to
constitutional scholars believe that once electors have been reach a decision as to the election result not less than six
chosen, they remain constitutionally free agents, able to vote days before the date on which the electors are scheduled to
for any candidate who meets the requirements for President meet, then that decision is final.
and Vice President. The electors almost always meet in the State capital,
Faithless electors have been few in number: Since usually in the capitol building or State house itself. They
1900, there have been eight, one each in the elections of vote “by ballot” — paper ballot -— separately for President
1948, 1956,1960, 1968,1972,1976,1988 and 2004, and and Vice President. At least one of the candidates must be
one blank ballot cast in 2000. They have never influenced from another State, a provision retained from the original
the outcome o f a presidential election, however, but their constitutional requirement; as noted previously, this was in­
“faithless” votes, or failure to vote, were all duly recorded, tended by the founders to promote the selection of nation­
and none of these faithless electors was prosecuted for this ally renowned candidates, and to prevent the electors from
action. selecting exclusively “native sons.”

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 The results are then endorsed, and copies are sent to utes. At the end of this period, the houses vote separately to
the following officials: agree or disagree with the objection. The Senate then returns
to the House chamber, and the joint session reconvenes. The
• the Vice President of the United States (in the Vice decisions of the two houses are announced. If both houses
President’s capacity of President of the Senate); agree to the objection, then the electoral vote or votes in
question are not counted. Otherwise, the vote or votes stand
• the State secretary o f state or the comparable State as submitted, and are counted as such.
officer; This process was most recently used following the 2004
presidential election. An objection was raised to the certifi­
• the archivist of the United States; and cate of the electoral vote filed by the State of Ohio at the
joint electoral count session held on January 6, 2005. The
• the judge of the Federal district court of the district in objection met the required standards, being submitted in
which the electors met. writing and bearing the signatures of one representative and
one senator. The joint session was duly recessed, and the
The electors then adjourn, and the Electoral College two houses of Congress reconvened separately to debate and
ceases to exist until the next presidential election. vote on the objection, which they rejected. The certificate
of electoral votes submitted by Ohio was accepted, and the
Congress Counts, Ascertains, and Declares the Vote. vote was duly recorded.
Aside from the presidential inauguration on January 20, the
final step in the presidential election process is the count­ A Tie or Failure to Win a Majority in the Electoral Col­
ing, ascertainment, and declaration of the electoral votes in lege: Contingent Election by Congress. The Twelfth
Congress. Federal law directs the House of Representatives Amendment, as noted earlier in this report, requires that
and the Senate to meet in joint session in the House cham­ candidates receive a majority of electoral votes, that is, at
ber on January 6 of the year following the presidential elec­ least 270 of the current total of 538, in order to be elected
tion. For the 2016 presidential election, this day falls on President or Vice President.
Friday, January 6, 2017. Congress may, however, provide In the event of a tie, or if no candidate for either of both
by law for a different date, a practice it traditionally follows offices receives a majority, then choice of the President and
when January 6 falls on a Sunday. Vice President “defaults” to Congress in a procedure known
No debate is allowed in the joint session. The Vice Presi­ as contingent election. In a contingent election, the House
dent, who presides as President of the Senate, opens the elec­ of Representatives elects the President, choosing from
toral vote certificates from each State in alphabetical order. among the three candidates who received the most electoral
The Vice President then passes the certificates to four tell­ votes. The House votes by State: Each State delegation votes
ers (vote counters), two appointed by the House and two internally to decide for whom the State’s vote shall be cast.
by the Senate, who announce the results. The votes are then The Senate elects the Vice President in a contingent elec­
counted, and the results are announced by the Vice Presi­ tion, choosing between the two candidates who received the
dent. The candidates who receive a majority o f electoral largest number of electoral votes. Unlike the House, each
votes, currently 270 of 538, are declared the winners by the senator casts an individual vote. For both offices, a major­
Vice President, an action that constitutes “a sufficient dec­ ity is required to elect in a contingent election: 26 or more
laration of the persons, if any, elected President and Vice votes of individual States for President and 51 or more sena­
President of the States.” tors’ votes for Vice President. It should be noted that al­
though the District of Columbia participates in presidential
Objections to State Electoral Vote Returns. Objections may elections by choosing three electors, it would not partici­
be offered to both individual electoral votes and state returns pate in a contingent election for President or Vice President.
as a whole. Objections must be filed in writing and be signed Perhaps the most notable feature of contingent election
by one U.S. senator and one representative. If an objection is that each State casts an equal vote, regardless of popula­
is received in the joint session, and is determined to be valid, tion. In the House, each State delegation casts a single vote
then the electoral vote count session is recessed. The Senate for President, while in the vice presidential election, each
returns immediately to its chamber, and the two houses of senator casts a single vote.
Congress consider the objections separately. Under Federal Under the Twentieth Amendment, if the House of
law, these sessions cannot last more than two hours, and no Representatives has been unable to elect a President prior
Member of either house may speak for more than five min­ Continued on page 3 2

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 equally dubious to assert that nominees will slight the con­
H o w the System Works cerns of citizens of the States from which they draw their
greatest support, or that concentrated campaigning in the
Continued from page 5 battleground States somehow “disenfranchises” voters in
to January 20 in a contingent election, then the Vice Presi­ others.
dent-elect serves as acting President until the deadlock has
been resolved. Congress may provide by law who will act
as President if neither a President-elect nor a Vice President­ ■ NPV Constitutional and Legal Issues
elect has been chosen prior to January 20 in a contingent
election procedure. In addition to policy issues as discussed previously, some
observers have also raised questions related to the National
Popular Vote initiative based on the fact that it is an inter­
Electoral C ollege Reform state compact as defined in the Constitution. Others have
questioned whether NPV might interfere with some pro­
Continued from page 11 visions of the Voting Rights Act.
does not require that winning candidates gain a majority One issue turns on the status of the NPV initiative.
of the popular vote, but delivers the presidency to the ticket NPV has been described by its supporters variously as a bill,
that gains more popular votes than any other. a State-level statute, and an interstate compact, and is gen­
Another criticism centers on what could be accurately erally considered to be the latter. An interstate compact is a
defined as a fundamental change in the presidential elec­ contract agreement between two or more consenting States
tion process and a de facto amendment to the Constitution. to establish an agency or authorize programs or functions
In fact, they could note, the NPV, as described by its that are carried out on an interstate basis. Article I, Section
Founders, is an admitted “end run” around the Constitu­ 10, Clause 3, requires that “No State shall, without the
tion, circumventing the amendment process established by Consent of Congress... enter into any Agreement or Com­
the Founders in Article V. One study opposing the plan pact with another State.... ”
asserted that because the use of an interstate compact “does A related issue concerns the question o f whether the
not conform to the constitutional means of changing the National Popular Vote Initiative is an interstate compact
original decisions of the framers, NPV could not be a le­ that requires congressional consent. The National Popu­
gitimate innovation. lar Vote movement agrees that NPV is an interstate com­
Opponents might also assert that the NPV would elimi­ pact, but it maintains that the C onstitution implicitly
nate the multiplier effect by which the Electoral College permits valid interstate agreements without the need for
tends to magnify the winning ticket’s margin of victory, and congressional approval on any subject that falls within the
confers a degree of added legitimacy to winners. NPV op­ States’ constitutional authority, as they assert the NPV
ponents could also argue that eliminating the multiplie ef­ compact would.
fect would actually result in an increase in contested election Another issue is related to the Constitution’s grant of
results and legal challenges in the States, as the political par­ authority in Article II, Section 1, Clause 1, to the States to
ties maneuver to claim every possible vote. “appoint, in such manner as the Legislature thereof may
Critics may also note that the National Popular Vote direct,” their electors for President and Vice President. The
plan, launched in 2006, contains no “statute of limitations,” question has been raised as to whether NPV would violate
unlike constitutional amendments, which must be approved the principles of federalism and deprive individual states of
by three-fourths of the States, typically within a seven-year their influence under the Electoral College.
period. It may be noted that if NPV were a constitutional One critic asserts the National Popular Vote compact
amendment proposed in 2006, it would have expired in might violate Section 2 of the Voting Rights Act because
2013. moving from “a State-based [vote] to a national popular vote
Finally, opponents might question the assertion that dilutes the voting strength of a given State’s minority popu­
spreading campaign spending resources and candidate lation by reducing its [voting power] ability to influence the
events in non-battleground States is a goal that justifies a outcome of presidential elections.” The same author asserts
profound change in the presidential election process. Can­ that the NPV compact may also violate Section 5 of the Act.
didate campaign appearances and spending, they might In 2013, however, the U.S. Supreme Court invalidated
assert, should not be considered to be a local economic Section 4(b) of the VRA; as a result, Section 5 has been ren­
stimulus package; moreover, they might continue, it is dered currently inoperable. ■

32 Congressional Digest ■ w w w .C o n g re ssio n a lD ig e st.co m ■ January 201 7

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