BGOL Lesson of the Day: How Does the Electoral College Work and Why Does It Matter?

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The Electoral College Explained
It’s the Electoral College, not the national popular vote, that determines who wins the presidency.


Democratic electors in Nevada signing their ballots for the Electoral College in 2016. To win, a candidate needs 270 electoral votes of the 538 that are up for grabs.Credit...Scott Sonner/Associated Press
By Allyson Waller

• Oct. 22, 2020
• • 
    

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It remains one of the most surprising facts about voting in the United States: While the popular vote elects members of Congress, mayors, governors, state legislators and even more obscure local officials, it does not determine the winner of the presidency, the highest office in the land.
That important decision ultimately falls to the Electoral College. When Americans cast their ballots, they are actually voting for a slate of electors appointed by their state’s political parties who are pledged to support that party’s candidate. (They don’t always do so.)
This leads to an intense focus on key battleground states, as candidates look to boost their electoral advantage by targeting states that can help them reach the needed 270 votes of the total 538 total up for grabs. The Electoral College also inspires many what-if scenarios, some of them more likely than others.
Can a president lose the popular vote but still win the election?
Yes, and that is what happened in 2016: Although Hillary Clinton won the national popular vote by almost 3 million votes, Donald Trump garnered almost 57 percent of the electoral votes, enough to win the presidency.
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The same thing happened in 2000. Although Al Gore won the popular vote, George W. Bush earned more electoral votes after a contested Florida recount and a Supreme Court decision.
And in 1888, Benjamin Harrison defeated the incumbent president, Grover Cleveland, in the Electoral College, despite losing the popular vote. Cleveland ran again four years later and won back the White House.

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Other presidents who lost the popular vote but won the presidency include John Quincy Adams and Rutherford B. Hayes in the elections of 1824 and 1876.
The House of Representatives picked Adams over Andrew Jackson, who won the popular vote but only a plurality of the Electoral College. A special commission named by the House chose Hayes over Samuel J. Tilden, after 20 electoral votes in Florida, Louisiana and South Carolina were disputed.
The Electoral College has also awarded the presidency to candidates with a plurality of the popular vote (under 50 percent) in a number of cases, notably Abraham Lincoln in 1860, John F. Kennedy in 1960 and Bill Clinton in 1992 and 1996.
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What happens in a tie?
Because there is now an even number of electoral votes, a tie is feasible. If that happens in the Electoral College, then the decision goes to the newly seated House of Representatives, with each state voting as a unit.
Although it’s not detailed in the Constitution, each state delegation would vote on which candidate to support as a group, with the plurality carrying the day, said Akhil Reed Amar, a professor of law and political science at Yale University. If there is a tie vote in a state’s delegation, the state’s vote would not count. A presidential candidate needs at least 26 votes to win.
Currently, Republicans control 26 state delegations, while Democrats control 22. Pennsylvania is tied between Republican and Democratic representatives, and Michigan has seven Democrats, six Republicans and one independent. That could all change on Nov. 3 of course, because all House seats are up for election.
The decision on vice president goes to the newly elected Senate, with each senator casting a vote. Ultimately, any disputes about the procedure could land everything in the Supreme Court.
What if electors break their pledge?
People call them “faithless electors.” In 2016, seven electors — 5 Democrats and 2 Republicans — broke their promises to vote for their party’s nominee, the most ever in history. They voted for a variety of candidates not on the ballot: Bernie Sanders, Colin Powell and Ron Paul, among others. It did not change the outcome.
Whether electors should be able to change their positions has been heavily debated, so much so that the Supreme Court unanimously ruled in July that states may require electors to abide by their promise to support a specific candidate.
Some scholars have said they do not wholeheartedly agree with the decision, arguing that it endangers an elector’s freedom to make decisions they want and that electors are usually picked for their loyalty to a candidate or party.
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“They will do as promised if the candidates do a very good job vetting them and picking people who are rock-solid,” Professor Amar said.
Thirty-three states and the District of Columbia have laws that require electors to vote for their pledged candidate. Some states replace electors and cancel their votes if they break their pledge.
Certain penalties exist in other states. In New Mexico, electors can be charged with a felony if they abandon their pledge, and in Oklahoma a faithless elector could face a misdemeanor charge.
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How did this system evolve?
The Electoral College was born at the 1787 Constitutional Convention in Philadelphia.
The nation’s founders hoped to quell the formation of powerful factions and political parties, and they wanted a mechanism that did not rely solely on popular majorities or Congress. Despite the name, it is not a college in the modern educational sense, but refers to a collegium or group of colleagues.
The system had some unusual results from the start, as evident in the election of 1800, a tie in which Thomas Jefferson and Aaron Burr received an equal number of electoral votes. Congress broke the tie, and Jefferson became president and Burr became vice president. (Until the ratification of the 12th Amendment in 1804, the candidate with the second-highest number of electoral votes became vice president.)
Today, electors meet in their respective states on the first Monday after the second Wednesday of December — Dec. 14 this year — to cast separate ballots for president and vice president, with the candidates who receive a majority of votes being elected.
Electors are chosen every four years in the months leading up to Election Day by their respective state’s political parties. Processes vary from state to state, with some choosing electors during state Republican and Democratic conventions. Some states list electors’ names on the general election ballot.
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The process of choosing electors can be an “insider’s game,” said Kimberly Wehle, a professor at the University of Baltimore and the author of “What You Need to Know About Voting and Why.” They are often state legislators, party leaders or donors, she said.
How many electoral votes does it take to win?

The important number is 270. A total of 538 electoral votes are in play across all 50 states and Washington, D.C. The total number of electoral votes assigned to each state varies depending on population, but each state has at least three, and the District of Columbia has had three electors since 1961.
Are all states winner-take-all?

Most are, and it helps to think of voting on a state-by-state basis, Professor Amar said.

“It’s just like in tennis,” he said. “It’s how many sets you win and not how many games or points you win. You have to win the set, and in our system, you have to win the state.”

Two exceptions are Maine and Nebraska, which rely on congressional districts to divvy up electoral votes. The winner of the state’s popular vote gets two electoral votes, and one vote is awarded to the winner of the popular vote in each congressional district.

There are arguments that the states with smaller populations are overrepresented in the Electoral College, because every state gets at least 3 electors regardless of population. In a stark example, sparsely populated Wyoming has three votes and a population of about 580,000, giving its individual voters far more clout in the election than their millions of counterparts in densely populated states like Florida, California and New York. And the American citizens who live in territories like Puerto Rico, Guam and the U.S. Virgin Islands are not represented by any electors.
“When you talk about the Electoral College shaping the election, it shapes the election all the time because it puts the focus on certain states and not others,” said Alexander Keyssar, a professor of history and social policy at Harvard University.

Will the system ever change?

For years there have been debates about abolishing the Electoral College entirely, with the 2016 election bringing the debate back to the surface. It was even a talking point among 2020 Democratic presidential candidates.


The idea has public support, but faces a partisan divide, since Republicans currently benefit from the electoral clout of less populous, rural states.
Gallup reports 61 percent of Americans support abolishing the Electoral College in favor of the popular vote. However, that support diverges widely based on political parties, with support from 89 percent of Democrats and only 23 percent of Republicans.
One route would be a constitutional amendment, which would require two-thirds approval from both the House and Senate and ratification by the states, or a constitutional convention called by two-thirds of the state legislatures.

Some hope to reduce the Electoral College’s importance without an amendment. Fifteen states and the District of Columbia, which together control 196 electoral votes, have signed on to an interstate compact in which they pledge to grant their votes to the winner of the national popular vote. The local laws would only take effect once the compact has enough states to total 270 electoral votes.
Lastly, an election-related case could find its way to the Supreme Court, which would lend greater importance to the judicial makeup of the court, Professor Wehle said.

“It only takes five people with life tenure to actually amend this Constitution through a judicial opinion,” she said.

The Electoral College Explained

It’s the Electoral College, not the national popular vote, that determines who wins the presidency.

www.nytimes.com

 

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Pros and Cons of Debate Topics | Britannica

Explore pros and cons lists for debated issues presented in a non-partisan format with supporting background information, statistics, and resources.

www.procon.org

https://www.gilderlehrman.org/sites/default/files/inline-pdfs/Arguments%20for%20the%20Electoral%20College_0.pdf

 

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What the Electoral College Saves Us From
By DAN MCLAUGHLIN
April 5, 2019 2:53 PM

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(Jonathan Ernst/Reuters)The winner of a national office should have nationwide support

NRPLUS MEMBER ARTICLEThe latest enthusiasm from progressive pundits and activists for replacing the American system of self-government is to abolish the Electoral College and choose presidents by national popular vote. As with all such enthusiasms — expanding the Supreme Court, abolishing the filibuster and the Senate itself, lowering the voting age to 16, letting convicted felons and illegal aliens vote, adding D.C. and Puerto Rico as states, automatic voter registration, abolishing voter ID, etc. — the scarcely concealed argument is that changing the rules will help Democrats and progressives win more.



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Also as with all such enthusiasms, Democratic presidential contenders have been unable to resist its siren song. Multiple prominent Democratic senators, including Kirsten Gillibrand (N.Y.), Minority Whip Dick Durbin (Ill.), and Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, are introducing a proposal this week in the Senate to make it happen, the second such proposal by Senate Democrats this month. As radical an idea as this is, its support in high places demands to be taken seriously.
The Electoral College has been with us since the Founding, and in its present form since the election of 1804. Some of the reasons for its creation may be obsolete now, and the original concept of the electors themselves as important actors in the presidential selection process has long since left us. But the fundamental system of electing presidents by 50 simultaneous statewide elections (plus D.C.) rather than a raw national popular vote has long served America well. It isn’t going anywhere, and it shouldn’t.

Uniting the States of America
What would American politics look like without the Electoral College? Changing our current system would unsettle so many of the assumptions and incentives that drive presidential politics that the outcomes could easily be unpredictable. But first, consider the immediate changes.
The core function of the Electoral College is to require presidential candidates to appeal to the voters of a sufficient number of large and smaller states, rather than just try to run up big margins in a handful of the biggest states, cities, or regions. Critics ignore the important value served by having a president whose base of support is spread over a broad, diverse array of regions of the country (even a president as polarizing as Donald Trump won seven of the ten largest states and places as diverse as Florida, Pennsylvania, Arizona, West Virginia, Wisconsin, North Carolina, and Texas).











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In a nation as wide and varied as ours, it would be destabilizing to have a president elected over the objections of most of the states. Our American system as a whole — both by design and by experience — demands the patient building of broad, diverse political coalitions over time to effect significant change. The presidency works together with the Senate and House to make that a necessity. The Senate, of course, is also a target of the Electoral College’s critics, but eliminating the equal suffrage of states requires the support of every single state. A president elected without regard to state support is more likely to face a dysfunctional level of opposition in the Senate.

Consider an illustrative example. Most of us, I think, would agree that 54 percent of the vote is a pretty good benchmark for a decisive election victory — not a landslide, but a no-questions-asked comfortable majority. That’s bigger than Donald Trump’s victory in Texas in 2016; Trump won 18 states with 54 percent or more of the vote in 2016, Hillary Clinton won 10 plus D.C., and the other 22 states were closer than that. Nationally, just 16 elections since 1824 have been won by a candidate who cleared 54 percent of the vote — the last was Ronald Reagan in 1984 — and all of them were regarded as decisive wins at the time.
Picture a two-candidate election with 2016’s turnout. The Republican wins 54 percent of the vote in 48 states, losing only California, New York, and D.C. That’s a landslide victory, right? But then imagine that the Republican nominee who managed this feat was so unpopular in California, New York, and D.C. that he or she loses all three by a 75 percent–to–25 percent margin. That 451–87 landslide in the Electoral College, built on eight-point wins in 48 states, would also be a popular-vote defeat, with 50.7 percent of the vote for the Democrat to 49.3 percent for the Republican. Out of a total of about 137 million votes, that’s a popular-vote margin of victory of 1.95 million votes for a candidate who was decisively rejected in 48 of the 50 states.



Who should win that election? This is not just a matter of coloring in a lot of empty red land on a map: each of these 48 states is an independent entity that has its own governor, legislature, laws, and courts, and sends two senators to Washington. The whole idea of a country called the United States is that those individual communities are supposed to matter.


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This scenario is extreme, but the problem is not: elections where some places are overwhelmingly for or against a candidate while the rest of the country is competitive. The most extreme example happened in 1860: Abraham Lincoln won 18 of the 33 states (all the free states except New Jersey), giving him 59 percent of the Electoral College. Across the states he won, Lincoln got 54 percent of the popular vote, just as in our example above. In the two states that gave electoral votes to Stephen Douglas (New Jersey, which split its votes between Lincoln and Douglas, and Missouri), however, Lincoln won just 26 percent, and he was not even on the ballot elsewhere: He got just 0.9 percent in the eleven states carried by Vice President John Breckinridge and 0.7 percent in the three states carried by John Bell.
Lincoln won a popular plurality with just under 40 percent of the vote, and it is true that 1860 is a unique case. But the point is that the Electoral College works against a united regional minority, such as the antebellum South, that seeks to impose its will on the majority regions of the country simply by virtue of superior unity.
In the case of the South, that unity persisted long after the Civil War. Well into the 20th century, in elections still within living memory, states in the “Solid South” voted in far greater lockstep than elsewhere. Democrats won Mississippi, for example, with over 82 percent of the vote in every election from 1892 to 1944, clearing 90 percent eight times. Franklin D. Roosevelt won the eleven states of the old Confederacy with 81 percent of the vote in 1932 and 1936, 78 percent in 1940, and 72 percent in 1944. But 94 percent of the vote in Mississippi and 81 percent in Alabama counted no more than Tom Dewey’s winning 50–49 in Ohio and Wisconsin in 1944, or Wendell Willkie carrying Michigan by three-tenths of a point in 1940. That’s a good thing if you think a single, radicalized region of the country shouldn’t be given disproportionate power in choosing a national leader.

One of the reasons we are having this argument right now is that more than 13 percent of Hillary’s voters lived in a single state, California — the highest proportion for any candidate since Dewey in his home state (New York, then the nation’s most populous) in 1944, and higher than any winning candidate since 1868, when only 34 states voted (a few ex-Confederate states were still not allowed to participate). Hillary’s 4.2-million-vote margin in California more than accounted for her 2.9-million-vote plurality nationally. That one-party unity in the largest state, out of step with the rest of America, explains more about the popular/electoral vote split than the small states do. In the smallest states (those with 5 or fewer electoral votes, including D.C.), Trump got 30 electoral votes to Hillary’s 29. The real Democratic grievance is not that small states get a voice, but that big, closely divided states such as Florida, North Carolina, and Ohio get a say instead of being swamped by a few big outliers.
Making It Work
That’s just how the vote tallies matter. But of course, replacing the Electoral College would change how votes are courted and how they are tabulated.
The immediate question is what happens when no candidate gets a majority of the national popular vote (i.e., more than 50 percent). Senator Jeff Merkley (D., Ore.), the author of one proposal, ducks the issue, claiming incorrectly that “we have now seen two elections where the majority of voters supported a candidate who did not become the President.” The proposed constitutional amendment authored by Senator Brian Schatz (D., Hawaii) and joined by Gillibrand, Durbin, and Feinstein states: “The pair of candidates having the greatest number of votes for President and Vice President shall be elected.”
In 49 elections since 1824, the voters have returned a popular-vote majority 31 times. Those elections have not been the problem: In only one of them (1876) did an arguable winner of a majority fail to win the Electoral College. I say “arguable” because Democratic New York governor Samuel Tilden’s 1876 race against Republican Ohio governor Rutherford B. Hayes was marred by force and fraud throughout the South that left many of the vote tallies in question, and one state won by Hayes (Colorado) held no popular vote at all because it had been admitted to the Union that year and was not ready for a statewide election.


In the other 18 elections, an Electoral College majority went to the winner of a plurality of the national popular vote 14 times. Those winners, all below 50 percent of the popular vote, include the first election of some very big names in American history: Lincoln, John F. Kennedy, Harry Truman, James K. Polk, Richard Nixon. Three Democrats won the presidency twice without ever winning a popular majority: Bill Clinton, Woodrow Wilson, and Grover Cleveland. Several of those winners fell far short of a majority, usually when there was a strong third-party candidate: 39.7 percent for Lincoln in 1860, 41.8 percent for Wilson in 1912, 43.4 percent for Nixon in 1968, 43.0 percent for Clinton in 1992. Yet the system legitimized them as the victors.
The Constitution currently provides that if no candidate wins a majority of the Electoral College, the president is chosen by the House of Representatives, with one vote per state. The one time that happened under the current voting system, in 1824, was a fiasco: the popular-vote winner (though in some states there was no popular vote), Andrew Jackson, was shut out when the third-place finisher, House speaker Henry Clay, threw his support to John Quincy Adams and was rewarded by becoming Adams’s secretary of state (then considered a stepping-stone to the presidency). That sort of deal is completely routine in parliamentary systems, but the American people rebelled and in 1828 chose Jackson by a clear majority after four years of a hobbled presidency. If the House were to choose presidents by the same method when there is no popular majority, George W. Bush and Donald Trump would still have won their elections, since the Republicans controlled of a majority of House caucuses at the time of each election. But the Democrats are proposing a system in which the president needs to win neither a popular majority nor a majority of the states. The Schatz amendment’s only fallback provision is that Congress can provide for resolving a popular vote tie.
If we think of the Electoral College as a way of ensuring a decisive result in the absence of a national popular majority, and election by the House as the fallback only when both of those options fail, it makes a lot more sense. Splits between the popular vote and Electoral College winners will practically always be very rare when one candidate gets a popular majority; 1876 aside, those splits have only happened when neither candidate mustered a majority. Hillary Clinton won 48 percent of the vote; had she won another 2.7 million votes away from Trump and the third-party candidates to get to 50 percent, the odds are good that she would have won the election. The combined margin of her defeats in the eight closest states — Michigan, Wisconsin, Pennsylvania, Florida, Arizona, Iowa, North Carolina, and Georgia — was just 813,700 votes.
Assuming that “national popular vote” means that even a plurality will do, what happens if the national popular vote is really close? We’ve had four elections (1880, 1884, 1960, and 1968) in which the popular-vote margin was less than a percentage point but the clear Electoral College outcome made it academic to reexamine the national vote totals. National Review’s editorial defending the Electoral College neatly summarizes the practical problems that would come swiftly to the fore:

Under the current system, the result of presidential elections tends to be clear almost immediately — there is no need, for example, to wait three weeks for California to process its ballots; it is nigh-on impossible for voters to return a tie or disputed outcome; and, because presidential elections are, in effect, fifty-one separate elections, accusations of voting fraud and abuse hold less purchase than they would if all franchisees were melted into a single, homogeneous blob. The freak occurrence that was Bush v. Gore is often raised as an objection against the status quo. Less attention is paid to the obvious question: What if that recount had been national?

All the various controversies over voting — who’s eligible, how do we check eligibility, how are votes counted and recounted, how quickly are they tabulated, what paper trail is created — have the advantage of being contained today within individual states, so that the states where election systems are dominated by one party can’t do more in a presidential race than deliver their own state. The diversity of state electoral systems and eligibility rules was a concern all the way back to the creation of the Electoral College in 1787, and overhauling the system would also create immense pressure to nationalize those systems, at the cost of much expense and controversy. That, too, is what progressives aim for: the Schatz amendment introduces a new rule that ties the right to vote in presidential elections to state requirements for voting for the state legislature, and federalizes in a stroke many aspects of election management: “The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be determined by Congress.” There is no reason to think this would be worth the effort just to deal with the four cases in 231 years when a popular-vote plurality loser won an Electoral College majority.
Moreover, the Schatz amendment also grants de facto backdoor statehood to Puerto Rico and other territories for purposes of voting in presidential elections: “The President and Vice President shall be elected by the people of the several States, the territories, and the district constituting the seat of government of the United States.” This is entirely unprecedented, and would fundamentally alter the nature of territorial status as it has existed since 1787.
In fact, moving to a national popular vote could spell the end of popular-majority presidents. The 50-state system is a barrier to entry for third-party candidates with niche appeal, but a national popular-vote system could create quite different incentives. Michael Brendan Dougherty has elaborated on the destabilizing effect that Electoral College reform, especially combined with other proposals, could have on our existing two-party system. While some may view this as a good thing — everyone has their favorite grievances with the co-opting and polarizing two-party system — parliamentary systems with a profusion of parties tend to have a lot more parties that are openly extremist on the far right and far left. Allen Guelzo notes, more broadly, how the case against the Electoral College tends to ignore the experiences of other nations:

The German federal republic, for instance, is composed (like ours) of states that existed as independent entities long before their unification as a German nation, and whose histories as such have created an electoral system that makes our “antiquated” Electoral College look like a model of efficiency. In the German system, voters in 299 electoral districts each cast two votes in elections for the Bundestag (Germany’s parliament): the first for a directly elected member and the second for one of 34 approved parties (in 2017), whose caucuses then identify candidates. A federal president (Bundespräsident) is elected every five years by a federal convention that reflects the party majorities in the Bundestag and the state parliaments of the 16 German states. Finally, the federal president proposes the name of the de facto head of state, the chancellor (Bundeskanzler) to the Bundestag. By contrast, the Electoral College is remarkably straightforward.

As Jonah Goldberg observes, “no Western European country has a unified leader directly elected by the people.” Jonah continues:

As Elaine Kamarck of the Brookings Institution has observed, America is the only advanced democracy that has decided to strip its political parties of the power to select their own candidates. Until 1972 — through conventions, smoke-filled rooms, etc. — the parties, not the voters, determined who their presidential candidates would be. This function is among the informal checks and balances that make democracy workable around the globe; we scrapped it in favor of ever more open primaries.

The primary system in both parties today is still a state-by state system, and in the Democratic party it yielded a winner in 2008 (Barack Obama) who had not received the most votes nationally in the primaries, but went on to win a popular majority in the general election. It also answers a common argument that the Electoral College causes a lot of places to be ignored: The primary process still gives many of these same voters a big voice. Northeastern blue-state Republicans played a pivotal role in nominating Trump; rural red-state African-American southerners played a decisive role in nominating Obama.
Expand the House
Finally, there is a solution available (admittedly, one with broad-reaching effects of its own) that would reduce the incidence of popular-vote/Electoral College splits without requiring a constitutional amendment and without doing violence to two centuries of American practice or eliminating the role of the states. That solution is to expand the size of the House of Representatives.
The House began with 65 members, but the Founding Fathers expected that it would expand over time, with the addition of new states and the growth of population. The first census increased the total to 99, and the House grew steadily until it was frozen at 435 members in 1911. The Constitution puts a minimum size on House districts (30,000 people), but today the average district is more than 20 times that, exceeding 700,000 people per district.


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That matters to the Electoral College because every state gets one electoral vote per House district, plus two for its two senators. In the early 1800s, it was common for only the newest state to have just three electoral votes, but today there are seven such states, plus D.C. Doubling the size of the House to 870 members would instantly increase all the states (but not D.C.) to a minimum of four electoral votes and would cut the “extra” electoral votes (those corresponding to Senators) almost in half, from 19 percent of the Electoral College to 10 percent. Based on the Census Bureau’s 2018 population estimates, doubling the House would, without any other changes, raise the four largest states from 28.4 percent to 30.6 percent of the Electoral College, while reducing the 15 smallest states and D.C. from 10.6 percent to 8.8 percent. That’s a fairer way of rebalancing the Electoral College without depriving the small states of a voice.
Expanding the House would affect many other things besides the Electoral College, of course: seniority, campaign finances, gerrymandering, even the physical capacity of the Capitol. So this is a remedy that shouldn’t be approached without serious thought for its other consequences. Moreover, the chief obstacle to doing so is that the people most opposed are the current members of the House. But if Democrats are serious about a realistic movement to improve the presidential election system, rather than just venting their anger at the fact that they have won a popular-vote majority only twice since 1976, they could use their new House majority to push for expanding the chamber in time for the drawing of new districts in 2022 and the presidential election of 2024.

 

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Film Club: ‘Why Voting in This U.S. Election Will Not Be Equal’

Why is it harder for some people to vote than for others?

www.nytimes.com

​

 

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Election night marks the end of one phase of campaign 2020 – and the start of another
BY DREW DESILVER

A worker processes ballots at the Orange County Registrar of Voters in Santa Ana, California, on Oct. 16, 2020. (Jeff Gritchen/MediaNews Group/Orange County Register via Getty Images)
On Nov. 3, millions of Americans will trek to their local polling places to cast their ballots for the next president. That evening, after the polls close, they’ll settle down in front of their televisions to watch the returns roll in from across the country. Sometime that night or early the next morning, the networks and wire services will call the race, and Americans will know whether President Donald Trump has won a second term or been ousted by former Vice President Joe Biden.
Just about every statement in the previous paragraph is false, misleading or at best lacking important context.
Over the years, Americans have gotten used to their election nights coming off like a well-produced game show, with the big reveal coming before bedtime (a few exceptions like the 2000 election notwithstanding). In truth, they’ve never been quite as simple or straightforward as they appeared. And this year, which has already upended so much of what Americans took for granted, seems poised to expose some of the wheezy 18th- and 19th-century mechanisms that still shape the way a president is elected in the 21st century.
Here’s our guide to what happens after the polls close on election night. While you may remember some of the details from high school civics class, others were new even to us. Keeping them in mind may help you make sense of what promises to be an election night like no other.
How we did this
By Election Day, much of the voting already will have happened
Even before the COVID-19 pandemic struck, Americans had been shifting away from lining up at the polls on Election Day. In 2016, only 54.5% of all ballots nationwide were actually cast in person on Election Day, according to data from the U.S. Election Assistance Commission. The share was roughly the same (55.4%) in the 2018 midterms.
More people than ever before are likely to vote in person before Election Day, by absentee or mail ballot, or by taking ballots they’ve filled out at home to a drop box or other secure location. Close to half (47.3%) of the ballots cast in this year’s primary season (among the 37 states, plus the District of Columbia, for which data was available) were by absentee or mail ballot or by voting early in person. As of this writing, nearly 47 million voters already had cast ballots.
Counting the votes will take longer than usual
Mail ballots pose a challenge to election workers, because they must be manually removed from their envelopes and verified as valid before they can be fed into the tabulating machines. Although election workers in at least 32 states can start processing ballots (but not, in most cases, counting them) a week or more before Election Day, these counts may not be finished by election night depending on how many come in. In a half-dozen states, including the battlegrounds of Pennsylvania and Wisconsin, processing can’t start until Election Day itself.
Also, in 23 states (plus D.C.), mail ballots postmarked by Election Day (or in a few cases the day before) can still be counted even if they arrive days later – further lengthening the counting process. Bottom line: Any vote totals reported on election night will be even more unofficial than they typically are.
It’s all about the electors
Unlike other U.S. elections, in which voters pick the winners directly, those millions of presidential votes won’t actually be cast for Trump or Biden. Instead, they’ll count toward a statewide tally to select the electors – the mostly little-known men and women who will actually elect the president.
Each state has as many electoral votes as it has senators and representatives combined (or, in the case of the District of Columbia, as many as it would have if it were a state). There are 538 in total, with 270 votes needed to win. As the Congressional Research Service puts it, the electors “tend to be a mixture of state and local elected officials, party activists, local and state celebrities, and ordinary citizens.”
In all but two states, the candidate with the most popular votes statewide (regardless of whether it’s a majority or a plurality) gets all that state’s electoral votes. Maine and Nebraska do it differently: The statewide popular-vote winner gets two of the electoral votes, and the winner in each House district gets an electoral vote. That’s why Democrats this year are targeting Nebraska’s 2nd District and Republicans have their eyes on Maine’s 2nd District. Both parties hope to squeeze a precious electoral vote out of a state that’s otherwise likely to go against them.
A key date in making this year’s election outcome final: Dec. 14
According to federal law, each state will have until Dec. 8 this year to resolve any “controversy or contest” concerning the appointment of its slate of electors under its own state laws. That effectively gives states more than a month after Election Day to settle any challenges to their popular votes, certify a result and award their electoral votes. If they do so by this “safe harbor” date, Congress is bound to respect the result. (The U.S. Supreme Court’s 2000 ruling in Bush v. Gore involved whether Florida was properly applying its own recount rules, and whether those rules ran afoul of the Constitution’s equal-protection guarantee.)
The electors will meet in their respective states on Dec. 14 – officially, the Monday after the second Wednesday in December – and formally cast their votes for president and vice president. The Constitution expressly forbids them from meeting as a single nationwide group, a provision the Framers put in to reduce the chances of mischief. The electors are supposed to vote for the candidates whose name they were elected under – in fact, 32 states (plus D.C.) have laws intended to bind the electors to their candidates. The Supreme Court this summer unanimously upheld such laws.
So-called “faithless electors” have on occasion broken their pledges, though never enough to actually swing the outcome. In 2016, for instance, five Democratic electors voted for people other than Hillary Clinton and two Republican electors voted for people other than Donald Trump.
In any event, the electors’ votes are supposed to be delivered to the vice president (in his capacity as president of the Senate) and a handful of other officials by Dec. 23 (the fourth Wednesday in December).
Wait – Congress has a role in this too?
Indeed it does. The newly elected 117th Congress will be sworn in on Jan. 3, 2021. Three days later, it is supposed to assemble in joint session to formally open the electors’ ballots, count them and declare a winner. Only then is the president officially “elected.”
Any pair of one senator and one representative can object to any of those votes as “not having been regularly given” (that is, not cast according to law). Following the 2004 election, for instance, Rep. Stephanie Tubbs Jones, D-Ohio, and Sen. Barbara Boxer, D-Calif., filed an objection against Ohio’s 20 electoral votes, alleging “numerous, serious election irregularities” in that state. But to sustain such an objection, both chambers must vote (separately) to do so. In the Ohio case, they both overwhelmingly rejected the challenge.
Each state is supposed to submit one set of electoral votes to Congress, and that’s what usually happens. Following the disputed Hayes-Tilden election of 1876, in which three states submitted two conflicting sets of returns, Congress passed the Electoral Count Act to try to set rules in case such a thing ever happened again. Under that law, if two conflicting sets are submitted – say, one by a Republican-run legislature and one by a Democratic governor – and the House and Senate cannot agree on which set is the legitimate one, then the electoral votes certified by the state’s governor are supposed to prevail. (Even stranger things are possible: In 1960, Hawaii’s governor first certified Vice President Richard Nixon’s electors, but after a recount certified Sen. John F. Kennedy’s electors. Both slates of electors met and voted for their pledged candidate; when the time came for Congress to decide which slate was the legitimate one, Nixon voluntarily deferred to Kennedy.)
Assuming that the usually ceremonial counting goes smoothly this year, Vice President Mike Pence will then announce whether he and President Trump have their jobs for another four years, or whether Joe Biden and Kamala Harris will take their places.
Topics
Election 2020Voter ParticipationElections and CampaignsVoting Process

 

[Mt. Yukon]

I understand it and that's why I'm not overly excited. Allot of Dem strongholds are washing Trump as expected. But its like dunking on someone. Yeah it makes ESPN, and someone's on a poster. But its still just 2 points. We need EVERYONE to vote and turn some of those red states blue for it to matter. Whole state of Cali can vote blue, all those people and its still just its alloted electoral college votes that count. Shit needs to change and sooner or later the Dems need strong arm that shit out the same way Repubs do everything else.

 

[illdog]

News Flash: While voting gives the illusion of having power to elect our supreme leader...The electoral college is the elite controlled institution that actually selects presidents..Just like last election.

 

[knightmelodic]

That is not why the electoral college was established. Like everything else in this country, it had to do with slavery.

 

[kes1111]

 

[playahaitian]

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