Electoral College

If the fact that Al Gore won the popular vote for the United States at large did not end things confused you, join the club. Let's see if we can clarify things a tad. When a person goes into the voting booth and votes for (or thinks s/he votes for) their candidates (President and Vice President), s/he is really voting for a slate of electors (that is, the actual people who elect) for each candidate for that state. The electors (538 in all) are assigned based on the number of members of Congress the state receives (the District of Columbia gets the number of the state with the least population, which currently means three votes).

No state, even those with very small populations, have less than three members of Congress (two Senators + one House of Representatives member), giving small states a slight edge. This edge is a bit higher since Congress by law decided to limit the House of Representatives to 435, which helps to further deprive most populated states an equitable share of the votes. Furthermore, federal territories are not counted at all, meaning American citizens in Puerto Rico, Guam, and a few other areas are basically disenfranchised in presidential elections.

The winner of the state (or the District of Columbia) popular vote gets all his/her party's electors for that state. A couple states (Maine and Nebraska, each having four electoral votes) have two at large electors that are given to the winner of the state, while the others are divided up by wins in each congressional district. If we consider the fact small states get a slight edge in the votes and that a candidate gets all the electoral votes of the state (except those two exceptions) once s/he gets the most votes in the state, a bit of math can show how one can win the popular votes but not the electoral votes. Though this almost never happened, the winner take all electoral system does exaggerate the victor. Looking at electoral votes alone would hide the fact no candidate since 1988 got a majority of votes.

These electors, or people who do the actual choosing (or electing) of the President, are appointed by political parties and tend to be party faithful. This helps explain, aside from tradition, how only a tiny number of electors (nine of thousands) did not vote for the winner of the popular vote. Federal law requires they be chosen within six days of when they vote (see below). At any rate, the electors basically can vote for whomever they want, though about half of the states have laws to punish "faithless" electors, who do not follow the popular vote. Nonetheless, most of the laws are relatively weak, and arguably are unconstitutional because electors were meant to be independent from the people.

The Constitution gives state legislatures the power to set the procedures in selecting electors, and at one time many did not use the popular vote to do it. Federal law also gives states a tie breaker, if Congress can not decide if its electors are valid or not, as long as the states choose them by December 12th. Nonetheless, it is dubious (the fact the US Supreme Court appeared to disagree aside) that state constitutions and election law suddenly go out the window in presidential elections, since state legislatures in all other cases are bound by their own constitutions. For instance, if a state constitution supplies a right to vote and way to count votes, why should it be ignored in presidential elections? Also, federal constitution limitations, such as equal protection, also apply. Of special note, electors cannot be federal employees or be discriminated by race, sex, or age (over eighteen).

These electors meet on a federally set day in December (third Monday after second Wednesday of December) and submit two votes, one for President and one for Vice President. The votes must be for people from different states (to prevent one state from getting a special benefit), which actually mattered this year since Republican Vice Presidential candidate Dick Cheney resides in Texas. Cheney therefore just set up a residency in Wyoming, though basically in name only. The electors meet (thus the "college" part) in designated locations in their particular states, their votes are listed, and certified by their particular state.

The lists are sealed and sent to Congress, which must be done by December 27th under federal law. When the new Congress opens in January, a combined session convenes, and the Vice President (aka the President of the Senate) officially opens the ballots (Jan 6th, unless it falls on a Sunday). Congress can also refuse to accept the legitimacy of electors, but this is usually a pro forma ritualistic ceremony, especially since any objection needs support of at least one member of both Houses of Congress. If there is a dispute over what slate of electors of a particular state should be counted, federal law turns to the one the state officially accepted (if chosen by the Dec 12th deadline), unless both Houses of Congress disagree. If no candidate gets a majority ("of electors appointed," which suggests "electors legitimately appointed"), the vote is thrown to Congress.

In the case of the President, the House of Representatives (with each state having one vote, so the party controlling the House does not necessarily win out, while a state delegation split down the middle would not be counted) chooses from the top three choices. Therefore, Ralph Nader had a chance to become President even after losing badly, since he was the third top vote getter. If no Vice President candidate got a majority, the Senate picks from the top two choices, but this time each senator votes separately (this happened in 1836). These groups must vote until one person gets a majority.

What if one or more of the candidates die or cannot serve? The electors can vote for anyone they want, so this is not a problem legally for them. On the other hand, when a losing candidate died before the electors vote, Congress did not accept the few who still voted for him. The Twentieth Amendment gives Congress the right by law to establish rules if the vote is thrown to them and one of the candidates has died or cannot be chosen for some reason.

What happens if the candidates are not chosen by the end of the current President's term of office (noon 1/20)? Well, this never occurred, but there are several possibilities, set out broadly in the Twentieth Amendment. If a Vice President has been chosen, s/he becomes President until a President is chosen. If not (by federal law), the next in line is the Speaker of the House of Representatives, and then the President pro tempore of the Senate (i.e. leader when Vice President is not present). Next, comes the Secretary of State, and then the Secretary of Treasury, and each of the Cabinet officers in order of seniority, since their offices do not immediately end at the end of the term of the President. Federal law controls after the Vice President in this 'line of presidential succession,' so Congress could in theory make Clint Eastwood temporary President.

The office of President and Vice President only has three constitutional requirements: being at least thirty five years of age, a natural born citizen (thus Madeline Albright, Clinton's Secretary of State can not be President or Vice President), and residence in the US for at least fourteen years. The Twenty Second Amendment sets a term limit for presidential elections, but interestingly, it doesn't appear to apply to Vice Presidents. After all, even though the Vice President potentially will become President if the office becomes vacant, the amendment only limits "elections." Nonetheless, an argument can be made that it would violate the spirit of the amendment, especially if the President promises to step down, thus assuring a third term for the ex-President. Nonetheless, clearly a former two term President can become President again in other ways: for instance, if the Vice President resigns, the President appoints a new one. And, if the President then resigns, viola, the former President becomes President once again!

One more interesting twist: the Constitution says only "Senators" pick the Vice President, so a 50/50 split might not be able to be decided by the Vice President breaking the tie. Furthermore, the Democratic choice for Vice President in 2000 is a senator, which complicates things a bit more. In such cases, the interested individuals could pass on voting, which would seem to follow the spirit of current congressional guidelines. Finally, if a President but no Vice President is chosen, the 25th Amendment gives the President the power to appoint a Vice President, who must be confirmed by a majority of both Houses of Congress. There is no requirement that this be the President's running mate in the general election.

So perhaps you all understand how the President and Vice President are chosen (by the US Supreme Court, of course), but are still wondering why they are chosen in such a convoluted way. Some of the Founding Fathers actually did suggest electing these two officers directly, like many states chose their governors. Nonetheless, there were various problems, and for the time, the compromise used to deal with them had merit at the time. Nonetheless, times soon changed, and the flaws of the procedure soon became clear.

First, the right to vote at that time was more limited (especially in a few states), and distrust of the popular will was only heightened by the importance of the office. Furthermore, would the common person be able to chose a truly national leader? National parties would soon change things, but this was a logical fear in a nation without modern communication and very locally geared population (many saw their state as their "country"). If the people (and states) chose members of Congress to indirectly represent them, why not have them choose people to represent them in electing a President? After all, a truly nationally democratically chosen leader of a nation the size of the US was a rather revolutionary concept. Finally, it was felt a populace with a local mind set would seldom give one candidate a majority, thus the importance of throwing such votes to Congress (who could pick from the top five and later top three candidates).

The other main concern was that a nationwide vote for President would seem to benefit populous states, which was a special concern of (but not solely of) slave states. This was why each elector could only vote for one person from his own state. Furthermore, Congress was set up in such a way to deal with this issue, most obviously by giving each state two senators and at least one representative, no matter what the population. So apportioning the states electors based on their allotment in Congress seemed logical. Large states still would have an edge, but not as much as a strict population based system. A greater say for the small states would also help make the choice more national, helping to not make the choice biased to one particular state or region. The lack of a "winner take all" system would increase the power of individual electors, as well as changing the outcome in various cases (John Adams won in 1796 because a few stray Southern state electors didn't vote for Jefferson).<

The idea of independent minded electors choosing the President and Vice President soon went to the wayside with the rise of political parties and concern for democracy. The states had the choice of how to choose electors, so could choose them based on democratic vote, which is how they are chosen today. Also, political parties soon arose, tying electors to the party choices for president, not their individual consciences. This is why it soon became necessary to vote for President and Vice President separately, not give the vice presidency to the second place winner. Electors, some state laws aside, technically still have the power to independently choose the candidates, but realistically they just follow the popular vote. Finally, individual electors soon went to wayside with all the state electors going to the winner of the state.

It is true that a few times the popular vote winner did not win the presidency, but it was not because the electors did not choose the popular choice of their states. It is also true that the need to give states with small populations an added edge is no longer as important today. First of all, there are no longer slaves states wanting more power to protect their peculiar institution. Second, the nation is much more connected than in the past, so that the interests of the people (a much more mobile group as well) at large are not as different as in the past. Also, democracy is much more important than in the past, as shown by direct election of senators, the idea of "one person one vote," and so on. Therefore, a set up where people in certain areas have a bit more or less power in the electoral college seems more suspect than in the past. Finally, the "winner take all" system reduces the benefits to small states, while helping big states (which now have big blocks of electoral vote).

It is true that the Electoral College still has some merit. There is still something to be said for helping force candidates to get national support (though parties tend to target different areas of the country, so rarely are truly national) instead of targeting select population centers. Society aims for middle of the road in this country, though it tends to harm alternate views, and hinders some probably beneficial change. A two party system (and its need for compromise to join together various groups) as compared to one wherein various parties appeal to small groups of people furthers this unity, and is benefitted by the Electoral College. Nonetheless, the two party system is strong in races without an electoral college (governor, local races, etc), and anyway tends to help block out alternative voices that supply a more diverse and democratic political arena.

Since parties now are not (if they ever were) truly national and target different groups, suggesting the Electoral College really helps that much one way or the other is questionable. Besides, why does giving small states special advantages further pluralism, as compared to say ethnic, religious, and social groups? It is good to give states control over things truly local, but true pluralism is concern for all groups and political persuasions, not just states like Wyoming and Montana. Furthermore, we are talking about the presidency, a national office, as compared to members of Congress, so comparisons to the US Senate are flawed. Finally, the winner take all system in the long run harms small states by giving large states (and often the Democratic Party whose base largely come from cities and urban areas) all the electors (and attention or lack thereof of candidates who feel over 50% of the voters of that state is in the bag) even if only a bit over half of the vote went to the winning candidate. Thus, candidates usually target select areas, instead of the whole country.

The fact that the winner of the popular votes practically always win the electoral vote helps a lot too. The current system does exaggerate the victory of the winner, though along with the pressure to make the candidates a bit more national, this is not necessarily a bad thing -- it helps the winner get a mandate to govern (or is this mandate a bit misleading?). On the other hand, the suggestion that Abraham Lincoln or Bill Clinton's forty or so percent of the popular vote should not be a problem because they each got a clear victory in the electoral vote seems problematic. It would better off to have a runoff to assure us a national executive with over forty percent or dare to dream fifty percent of the vote (pick top two candidates for runoff). More choices might actually help increase voting so more than half the electorate votes.

The problem with the election of 2000 was that both candidates won over twenty states in different areas of the country, got popular support throughout the nation, were members of the two major parties, and had about the same number (.2% difference is almost statistically irrelevant) of popular votes. If we add this to the fact that the margin of victory in receiving electoral votes probably had something to do with third party voters more tied to the loser (as well as flaws with the voting process), it seems questionable to not follow the will of the majority. The question seems to come down to this: are the remaining justifications for the electoral college strong enough to override the currently very strong bias toward democracy? I personally think in case of a near tie as is the case here (271-267 electoral and 49-49 popular), the tie breaker should be the popular vote.

Furthermore, the latest Electoral College result left something to be desired. Al Gore could have won the presidency with a win in only one more state, no matter how small or unpopulated (say South Dakota or Idaho). This would give the presidency to someone who just won the Northeast, West Coast, and Old Northwest (Great Lakes states), which puts aside the national candidate goal, while Bush clearly only won part of the country as well. Worrying about disputed elections in close states in direct elections? Well, look at that, the same problem arose using the current system. Leaving states near total control of presidential elections was also shown to be trouble, and interest groups and personal choice was often more important than what state one lived in. Finally the tie breaker was not national popular vote, but a few hundred disputed votes, and the Supreme Court. Not the best performance for electoral politics.

One last problem: a Gore elector in the District of Columbia submitted a blank vote (perhaps the first time this occurred) as a symbolic protest of the District not having voting representatives in Congress, as well as the flaws of the Electoral College system itself. It really did not mean much, but the message sent is troublesome: did people vote for Al Gore know they might have been voting for some symbolic gesture? Actually, we do not want electors to be "faithless" (only ten in history were, none in cases that meant something), so why have them at all? Why not just assign the electoral votes instead of wasting the time, money, and possibility that a few would say actually follow the popular vote and change their vote to Al Gore? It's a symbolic exercise that really just symbolically bows to a flawed system.

One last concern is that direct elections will be hard to carry out, as if the several large nations in the world that have them are having horrible problems every year. We can still allow states to count their own votes after all, such a division of work is logical in such a big nation as ours. It is true that in close elections (though we had very few real close presidential elections) there might be some kind of demands akin to Florida, but such worst case scenarios (and should not elections be much more efficiently run in the 21st century?) is not much a reason to continue the Electoral College. Finally, if it is felt necessary, only state recounts can be allowed in such cases.

The aim after the 2000 election should be to reform the system, if this requires abolishing the Electoral College (which I'm all for)or not. For instance, it is sad that in the year 2000, a third of the nation relies on ballots where people push in tabs that tends to have a higher margin of error in Democratic areas and in general undercounts votes. If we want to leave states (though more federal standardization of procedure is long due) ultimately in control of presidential elections, some should try experimenting with splitting their votes by the percent of the popular vote or wins in each congressional district (as two states now do). The Electoral College also does not include any representation for Puerto Rico and other US oversea territories, votes that might have decided the 2000 election. Constitution change does not seem likely (some small states would have to agree), but these and various other ideas might help reform an antiquated system.

In the over two hundred years of presidential elections, very few races were any where as close as the latest one. The first two presidential elections were not problematic, since George Washington had unanimous support. The election of 1796 was a bit more complicated, though it is seldom looked at that way. The electoral vote was actually almost as close as it was in 2000, and could have went the other way if the current "winner take all" system was in place. Since individual electors in a few states went to John Adams, he beat Thomas Jefferson (who came in second, so under the current rules became Vice President) by three electoral votes. This helped the movement to adopt a winner take all system wherein the winner of the state gets all the electoral votes, which shows its political uses is of long standing.

The disputed election was in 1800, in which a quirk of the electoral system resulted in an Electoral College tie. Party politics led Democratic electors to submit their two votes to Thomas Jefferson (presidential choice) and Aaron Burr (vice presidential choice, but the rules did not really assume there would be a predetermined vote for the office, giving it to the second place winner), resulting in a tie. Thus, national political parties, which the Framers naively did not expect to affect the system, made the Electoral College seriously flawed eleven years after it was established. This was seen by the subsequent events, which made it seriously possible the person the people did not want would be President, largely as result of the party that was clearly not the choice of the people!

The election, after some drama and eventual support from Alexander Hamilton, the clear choice (Thomas Jefferson) was chosen by the House of Representatives. The fact the clear choice of the electorate was not chosen automatically was an early example of the problems of throwing the election to the House (where certain state delegations consisted of but one person), where party politics is often as important as the public will. As is the case now, Congress was controlled by the other party, and could have voted along party lines against the popularly favored candidate. The aftermath was the Twelfth Amendment, which set up the voting so that the President and Vice President are chosen separately (in the age of party politics, electors pick both along party lines, and the presidential candidate choose the vice presidential candidate).

The next disputed election was 1824, where no candidate got a majority of the electoral vote. The winner of the plurality of votes (Andrew Jackson) did not win the election, since the third place winner threw his support to the second place winner (John Quincy Adams). If one looks at the popular votes, arguably the popular will was upheld, since only a small part of the votes of the fourth place winner (not a big Jackson supporter) would have to support Adams to give him a majority. Nonetheless, Adams' win in the House of Representatives did not stop people from saying he stole the election, though that's probably not why he lost in 1828. If a similar thing occurred today, a run off election would seem a much better way of doing things.

Let's jump to 1876, though it is to be noted Abraham Lincoln got only a little over forty percent of the popular vote, but had a clear electoral vote majority. The centennial of our independence brought a bunch of disputed vote counts (mainly in southern states, still under federal control and/or Republican control, much to the disgust of their white inhabitants, but also in Oregon). Though the loser of the popular vote (Rutherford B Hayes) needed all of the disputed electoral votes to go his way to win, a not so neutral (8-7 split Republican, but its very existence shows more concern than the 2000 do nothing strategy) special electoral commission gave them to him. The Democrats did not want to accepted the decision, but backed down when the Republicans agreed to end Reconstruction. This compromise plus the probability many of the disputed votes were the result of fraud or white pressure should be kept in mind before comparisons to the election of 2000 are made.

1876 started a stream of close elections between rather bland candidates for an office not that important in the age when Congress was more powerful, and international relations were minimal. Therefore, the fact that Benjamin Harrison won the electoral vote and presidency in 1888 over the popular vote winner Grover Cleveland (the incumbent and winner in 1892) was not that big of a concern. Furthermore, Harrison clearly won the electoral votes, unlike the Bush/Gore disputed votes in Florida. Therefore, the only time when something like this clearly occurred, it probably could have been any less a non-event.

It should be noted, however, that Cleveland lost the electoral vote while gaining the popular vote because the popular vote in the South went heavily his way. A reason for the Electoral College was to insure a national candidate, though one can easily imagine (and see in various elections) that it could be just as unbalanced as the South vote in 1888. Furthermore, it is to be noted that there is nothing wrong for one area to (for various reasons) be more of a bloc on certain issues that other areas. This is one reason why the structure was put in place (especially to help bolster the slaves state vote). Therefore, the reason Harrison lost the popular vote in 1888 does not particularly make his electoral win that much less troublesome.

The final disputed election was in 1960, a very close election between John Kennedy and Richard Nixon, especially in the state of Illinois. Nonetheless, it is to be noted that even if Nixon won Illinois (and it seems Republicans were no angels there either), he still would have not won the election. Furthermore, Kennedy clearly had a majority of the popular vote overall. Still, let us remember the Republicans did not just give the election to Kennedy. Nixon himself might have staid in the background, but he let Republicans dispute the count in several states without much success. One state (Hawaii) even had its electoral votes given to the different party than was originally "certified" by the state as the winner.

The Ford/Nixon election (1976) was very close, but Carter got a clear (if small) popular vote majority. Nonetheless, a relatively small change of the popular votes could have split the popular/electoral vote, though until now few really worried about such a thing would happen. The idea is that if it did not happen then, the 1888 election would be an anomaly, but the impeachment of President Clinton (130+ years after the last such impeachment) shows we should not be so complacent about such things. President Clinton in 1992 got barely forty percent of the vote, so an electoral/popular vote split in the year 2000 with such weak candidates should not be that much a shocker. It was to many, but really it should not have been.