Key Points to Know about the Electoral College and Presidential Election

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One of the most important ways to become politically active is through education. In the United States, many people are discouraged to vote because they do not truly understand how the system works—and the Electoral College is behind much of this confusion.

For the vast majority of elected officials, the popular vote is what matters. In other words, whichever candidate gets the most votes wins the election. This system is not how the president is elected, however. Instead of using the popular vote to determine the president, the Electoral College chooses the winner of the highest office.

The Two Confusing Electoral College Outcomes

The Electoral College consists of 538 votes, which are determined through the number of people in Congress. Each state has a number of votes equal to its two Senate seats plus the number of seats it has in the House of Representatives. A candidate needs to secure 270 of the 538 available votes to win the presidency.

Because of this system, it is possible for a candidate to lose the popular election yet still win the presidency—and this has happened multiple times in recent history. In 2016, for example, Hillary Clinton won the popular vote by about 3 million votes, but Donald Trump won the majority of electoral votes and thus became president. In 2000, Al Gore won the popular vote, but George W. Bush won the presidency. Before 2000, however, this had not happened since 1888.

The other issue that can come up because of the Electoral College is the possibility of a tie given that there is an even number of votes. In the event of a tie within the Electoral College, the ultimate decision goes to the House of Representatives, and each state serves as a voting unit rather than each representative.

The Constitution is surprisingly vague about how this would work, but presumably each state delegation would vote as a unit—the candidate with the plurality of votes within a delegation would win that state’s vote. If a delegation could not agree on a candidate, the vote from that state would not be counted. However, the candidate would need at least 26 votes to win. The Senate would then choose the vice president, with each senator casting a single vote. Any disagreements in Congress on this process would ultimately be decided by the Supreme Court.

The Questions of Faithless Electors

Another problem with the Electoral College is the potential for what’s called “faithless electors.” States trust that their nominated electors will vote as best represents their state’s voice, but electors can go against this as they cast the final ballot. In 2016, seven electors—the most in history—broke their promise and voted against their party’s nominee. Some of the candidates they voted for were not even on the ballot, such as Colin Powell, Bernie Sanders, and Ron Paul. Still, these faithless electors did not change the outcome of the election.

The ability of electors to change their position is a hotly contested issue. In July, the Supreme Court unanimously decided that states can require electors to abide by their promises, but some scholars have taken issue with this judgment.

The argument against this requirement is based on the elector’s freedom to make a final decision. These electors are chosen by their party for their loyalty to a specific candidate. This would seem to indicate that, if an elector decides to vote against their pledge, they likely have a very good and important reason for doing so.

Currently, 33 states and the District of Columbia have law that requires electors to vote for their pledged candidate. In New Mexico, abandoning a pledge is considered a felony. This same action is a misdemeanor in Oklahoma. Other states will simply cancel votes and replace electors if they vote against the party line, which can help prevent problematic situations.

The Past and Future of the Electoral College

The Electoral College was created at the 1787 Constitutional Convention in Philadelphia. The point of the Electoral College was to fight against overly powerful factions or political parties by creating a mechanism that did not rely solely on the popular majority.

The political parties in each state choose their electors every four years in the months leading up to the general election, and these individuals cast separate ballots for president and vice president on a specific day in December. Because the political and social situation now is radically different than it was in 1787, the Electoral College has received more scrutiny, with many people calling for its abolition.

Currently, the majority of Americans support doing away with the Electoral College and relying on the popular vote to elect the president. However, Republicans benefit from the electoral power of rural states, so there is partisan pressure to keep the system. While more than 60 percent of Americans want to abolish the Electoral College, a split by party is clear: 89 percent of Democrats want to abolish it, compared to only 23 percent of Republicans.

Another route may be possible as well. Abolishing the Electoral College would require a constitutional amendment, but 15 states and the District of Columbia have already signed an interstate compact pledging to grant their electoral votes to the winner of the national popular vote instead of the state vote. However, this law would not take effect until enough states to achieve the 270 electoral vote majority have signed on to the compact. The 15 states and DC that have signed the compact together control only 196 votes. Only time will tell if this is a viable way to temper the Electoral College’s power.

Published by Rachel Lader

Rachel Lader recently completed her Juris Doctor (JD) on a scholarship at New York Law School. While earning her degree, she participated in a study abroad program at Birkbeck, University of London. Complementing her education, Rachel Lader has worked in multiple internships in the legal sector.

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