The Electoral College

The Issue:  Why did the framers choose the method that they did for electing presidents?
Should the Electoral College be abolished or modified?

Almost everyone in America, thanks to the presidential election mess of 2000, knows that the Constitution provides that the president will be selected by an Electoral College, not by direct popular vote.  Only 538 persons, representing the slates of electors chosen by voters in the fifty states and the District of Columbia, actually vote directly for president.  The person receiving a majority of the votes of electors becomes the president.  In the event that no candidate receives a majority of electoral votes, the decision falls, under the 12th Amendment, to the House of Representatives.

The mode of the selection of the president was one of the most difficult and contentious issues in the 1787 Convention.  Some delegates urged that the president be selected by the legislature.  Other delegates, favoring direct election, argued that selection by the legislature would mean--at least if presidents could serve more than one term--that the president would be continually trying to please the legislators and would not be truly independent.  Delegates opposed to direct election expressed the concern that presidents would always come from more populous states and wondered whether the public would have the knowledge of various candidates necessary to make a wise selection.  The final decision of the delegates, to have electors chosen by the various state legislatures elect the president, was the result of a compromise worked out by a committee comprised of one delegate from each of the states and presented to the Convention on September 4, 1787.

Several elections have tested the Electoral College system.  The first contested election was that of 1800 when both Thomas Jefferson and his running mate, Aaron Burr, received 73 electoral votes, throwing the election into the House of Representatives.  (After 36 ballots, the House chose Jefferson.)  The consequence of the 1800 election was the 12th Amendment, providing that electors vote separately for president and vice-president.  The 1824 election saw a four-way split of electoral votes, with the House eventually choosing John Quincy Adams as president even though Andrew Jackson had received more electoral votes.  The 1876 election was a true mess, with disputes over which slates of electors had won in four different states.  The final determination as to which slates of electors had in fact been elected was made on an 8-7 vote by a congressional commission.  The commission's decision gave Rutherford Hayes 185 electoral votes and the presidency.   The winner of the popular vote, Samuel Tilden, finished with 184 electoral votes. (One cost of the 1876 election was the end of Reconstruction: to win Democrats' acceptance of the commission's decision, Republicans agreed to withdraw troops from the South, effectively trading the presidency for the disenfranchisement of blacks.) In 1888, Republican Benjamin Harrison lost the popular vote to Grover Cleveland, but won narrowly in the Electoral College.  Then, in 2000, trouble brewed again when electoral victory hinged upon a terribly close and challenged fight for Florida's 25 electoral votes.

The fight for Florida's votes went twice to the U. S. Supreme Court.  In the first case, Bush v Palm Beach, the Court vacated and remanded a Florida Supreme Court decision extending the deadline for certification.  The Court wanted to know whether the Florida Court had reached its decision by interpreting legislative intent (permissible, the Court said) or instead had relied on its interpretation of the Florida Constitution (which would be a violation of Article II, which delegates to State Legislatures the power to determine how electors are selected.)  In the second case, Bush v Gore, the Supreme Court effectively determined the outcome of the presidential race by reversing a Florida Supreme Court decision ordering a statewide recount of undervotes.  The Court majority found that the recount scheme violated the Equal Protection Clause.  Five justices went on to interpret Florida law as preferring a final certification by December 12 (the deadline for falling within the so-called "safe harbor" protection) to a more accurate recount by December 18 (the date that electors actually vote).  That interpretation of Florida law by the five most conservative members of the Court handed the presidency to Gov. Bush, since the opinion was released at 10 pm on December 11 and no recount by the 12th was possible.

In the 2020 case of Chiafalo v Washington, the Court considered the constitutionality of a state law that punished an elector for not voting for the presidential candidate who won the state's popular vote.  (Clinton carried Washington, but the elector voted for Colin Powell in the hopes of starting a movement by other electors that could result in a candidate other than Donald Trump being elected president.)  The Court ruled unanimously that nothing in the Constitution prohibits states from taking away the voting discretion of electors and punishing so-called "faithless electors."

Pages carry into the Senate electoral votes for 1948 election.


1. Why did many of the framers fear the direct election of the president?
2. Given the way that the Electoral College has evolved, does the College still serve the purpose that was envisioned for it by the founding fathers?
3.  What states are winners and what states are losers under the Electoral College system?
4.  Is the Electoral College likely to produce more--or fewer--recount disputes such as that witnessed in the 2000 election?
5. If a dispute concerning the validity of a particular slate of electors were to reach the U. S. Supreme Court, how would the Court likely handle the issue?  Why?
6.  Do you think that the Electoral College discourages third parties?  If so, is this good?
7.  Does one or the other of our two major parties benefit more from the Electoral College?  If so, which party and why?
8.  Is there any reason to think that the Electoral College produces better (or worse) presidents than would be produced by direct election?
9.  Is there even a snowball's chance in hell that the Electoral College system will be replaced by direct election of the president?  Why is a constitutional amendment changing our system of electing presidents so unlikely?
10.  Do you favor replacing the Electoral College with direct popular election of the president?  Why or why not?

5 Arguments for the Electoral College

1. The Electoral College, in recognizing a role for states in the selection of the president,  reminds us of their importance in our federal system.
2. The Electoral College encourages more person-to-person campaigning by candidates, as they spend time in both the big cities and smaller cities in battleground states.
3.  In close, contested elections, recounts will usually be confined to a state or two, rather than an across-the-country recount that might be required if we had direct election of the president.
4.  The Electoral College, with its typical winner-take-all allocation of votes, often turns a small percentage margin of victory into one that appears much larger, thus making the victory seem more conclusive and adding to the winner's perceived legitimacy.
5.  It's fun on election nights to watch states light up in different colors on television network maps of the U. S.

5 Arguments for Direct Popular Vote

1.  When the winner of the Electoral College is not the candidate who received the most votes of the people, the new president will face questions about his legitimacy.
2.  Most Americans believe that the person who receives the most votes should become president.  Direct election is seen as more consistent with democratic principles than is the Electoral College system.
3.  The Electoral College gives disproportionate weight to the votes of citizens of small states. For example, a vote by a resident of Wyoming counts about four times more--electorally--than a vote by a California resident.
4.  If presidents were elected by direct popular vote, they would wage a campaign and advertise all across the nation, rather than (as they do in the Electoral College system) concentrating almost all of their time and effort in a handful of battleground states.  The Electoral College system encourages candidates to pander to the interests of voters in a few closely contested states.
5.  The Electoral College system, especially in a close election, is subject to the mischief that might be caused by disloyal--or even bribed--electors.

An End-Run Around the Electoral College?

A proposal to make an end-run around the Electoral College is gathering support, but its ultimate success seems unlikely.  The so-called "National Popular Vote Bill" would, if adopted by a state, bind that state to casting its electoral votes for the presidential candidate receiving the greatest popular vote, regardless of which candidate carried its own state vote, provided that other states with a combined total of over 269 electoral votes (enough to elect a president) have promised to do likewise with their own electoral votes.  In 2007, Maryland became the first state to enact the National Popular Vote bill.  Hawaii, Illinois, and Virginia also have enacted the legislation.

The proposal faces at least two major problems.  First, it is unlikely to gain support in the battleground states that benefit from the current system by attracting candidates (and, they hope, promises to do well by their state) during the campaign.  Second, it is likely to face opposition from whatever political party feels it is more likely to win in the Electoral College than it is with the winner being determined by popular vote.  Although it is not clear whether any party is the more likely beneficiary of the Electoral College, Republicans have been skeptical of the National Popular Vote Bill because many "red" states are rural and have smaller populations (giving them disproportionate power in the Electoral College).  (Consider Wyoming, Idaho, Alaska, Nebraska, and South Dakota, for example).  Republicans also fear that Democratic candidates might rack up big popular vote margins in populous states such as California and New York, bigger margins than are likely to come from a more populous red state such as Texas.)

Link to National Popular Vote Bill site:

Supreme Court Cases

Bush v. Palm Beach County (2000)
Bush v. Gore (2000)
Analysis of Court Split in Bush v Gore
The Supreme Court Commits Suicide
Q & A about Gore v. Bush 
Concession Speech of Al Gore 

Chiafalo v Washington (2020) 

Cartoon from The New Republic

Questions Concerning the Supreme Court Decisions of 2000

1. The Supreme Court, of course, never had to accept either of these cases.  Should it have? 
2.  Did the Framers intend in Article II to restrict the normal deference that is extended to state court interpretations of state election law by the federal courts?  Or did the Framers mean to say only that state legislatures may--as was the early practice--actually select the electors?
3.  If state court interpretations of election law are to be extended less deference in the single context of selecting electors, what standard should apply?  Should state court interpretations of election law be overturned whenever they are unreasonable (as Bush lawyers argued), or only when they are a sham--an attempt to subvert legislative will and not a use of the normal tools of statutory construction (as Gore lawyers argued)?
4.  Did Bush have standing to assert the equal protection claims of Florida voters?
5.  How serious in the injury suffered by some Florida voters that was the basis for the Court's conclusion that the recount scheme violated the Equal Protection Clause?  Does it compare to the injury suffered in the "one person, one vote" cases involving apportionment?
6. Malapportionment distorts the political processes in a way making a legislative remedy of the problem unlikely, thus providing an argument for strict judicial scrutiny. Can the same be said about the problem identified in Bush--that it is the sort of invidious discrimination that will never be corrected without judicial intervention?

7.  How do you explain the fact that the five most conservative members of the Court--the five most likely to take states' rights stances in most cases-- were the five most willing to find a violation of federal law in Bush v Gore?
8.  Do you agree with the assertion that Bush v Gore was "pure politics" and not a reflection of judicial principles? Why or why not?
9.  Judge Richard Posner, in his Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, offers an interesting argument in support of the Court's decision in Bush v Gore.  Posner supports the decision because it avoided the chaos of a prolonged unresolved deadlock.  Do you agree that that reason is enough to justify the decision?

Relevant Provisions of the Constitution

Article II

Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector....
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the
United States.

Twelfth Amendment

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; 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. 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 person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President to the United States.

Twentieth Amendment

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Twenty-Third Amendment

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.   

Relevant Provisions in the U. S. Code

[Federal law establishes a detailed scheme for the counting of electoral votes and dealing with controversies concerning competing sets of electors.]

The Framers' Debate Concerning Methods for Selecting the President

[A complete record of the debate at the 1787 Constitutional Convention relating to the method of selecting the president, as recorded in the notes of James Madison.]

How the Electoral College Works

National Archives Electoral College Page
State Laws Regarding Electors
Electors by State for the 2000 Election
Votes Cast by Electors in Presidential Elections
The Hayes-Tilden Election of 1876
The Electoral College Calculator
Test Your Electoral College IQFederalist No. 68 on the Mode of Electing the President

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