The Electoral College Business

Posted: December 30, 2016 by Nazim in Election, Separation of Powers


Now that the commotion has died down, a couple of points of clarification on the Electoral College. I’ve said a few times that it was merely a matter of convenience, a way to expedite the vote from many localities to the capital of the country, a logistical shortcut to avoid making the federal government responsible for counting all the votes in remote areas. That’s not wholly accurate.

The 12th amendment was ratified shortly after the constitution was written, and governs how this elector business is dealt with. It was, much later, over-written to a small degree by section 3 of the 20th amendment. Further clarification can be found in the Federalist Papers (number 68, to be specific), but, if you actually go through the plain text of the constitution, the steps involved are pretty simple, although their goal is still confusing. See for yourself how the president and vice-president of the United States are actually elected:

  1. Each state’s political parties nominates electors. This step is governed by state law (pdf warning) and varies a bit.
  2. Based on the votes cast by citizens in the general election for the presidential and vice-presidential candidates, the nominees selected above become actual electors for that state.
  3. Electors meet in their states and vote on two separate ballots for the president and the vice-president.
  4. Those votes are sent to Congress, where they are all counted up.
  5. If a presidential or vice-presidential candidate has a simple majority of the votes, the process of electing that office ends there.
  6. Otherwise, the House of Representatives chooses a president among the top three individuals most voted by the electors for the job.
    • Oddly, each state gets only one vote, so I’m guessing the representatives of each state have to agree on how to cast that vote. There’s no mention of how this agreement should come to be, but I have suggestions.
  7. In parallel, if the electors didn’t have a majority of votes for a vice-president, the Senate picks one among the top two most voted candidates, voting normally. If the House can’t get its act together (I know, how unlikely is that?), this lucky guy or gal becomes the president.

It’s never gotten remotely close to going past step 5, except when our nation was in its infancy.¹ We’ve had plenty of faithless electors, but any elector that gives away such intentions can be replaced by their party under Ray v. Blair, although the dissent of justice Jackson (of Nuremburg trial fame), in which justice Douglas (of civil rights fame) joined, is noteworthy:

no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.

Sounds kinda like the power of jury nullification, doesn’t it? However, this case doesn’t address whether electors can be faithless. It just allows parties to replace them at will, or bully them with the threat of replacement, before the vote. Which drove at least one elector to just quit before the vote.

Some say that the electors should be a body empowered to do whatever it wants, making the popular vote more of a consultation with the citizenry. That’s insane, unless we agree beforehand that that’s what we’re really doing. But we never will.

¹ One such instance was when presidential candidates Thomas Jefferson and Aaron Burr tied with 73 electoral votes each in 1800. These and other events of the time are fantastically showcased in the runaway Broadway hit Hamilton.


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