Presidential Elections: A Primer

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This primer is a step-by-step recap of the procedures associated with our remarkable 2020 election. I do not address the politics of the matter, except to comment on the politically-charged debate between advocates for our electoral college and advocates for a national popular vote.

1. What dates are critical when we elect the president?

The presidential election of 2020 was set by federal statute to occur on November 3. Although the candidates’ names are on the ballot, we actually vote for electors who in turn are pledged to vote for each candidate. Then, the electors meet and vote – in 2020, on December 14 – in each state. Those ballots go to Congress, which finalizes the outcome on January 6, 2021, after which the president is inaugurated on January 20.

2. How are the electors appointed?

Article II of the U.S. Constitution provides that “Each State shall appoint [electors] in such Manner as the Legislature thereof may direct.” Of course, the appointment process must be established before the election occurs. All 50 states have opted to choose electors by popular vote. Congress can challenge the electoral outcome in one or more states, but presumably won’t do so if the vote count in the state is certified by state election officials at least six days prior to the electoral college meeting on December 14. In the 2020 election, all the vote counts except Wisconsin’s were certified; and even in Wisconsin, there was no indication of any basis for a congressional challenge.

3. What happens if Congress challenges a slate of electors, or there’s more than one slate that claims legitimacy?

The Electoral Count Act of 1887 requires Congress to consider any “papers purporting to be certificates of the electoral votes.” If one slate has been certified, Congress will accept that slate. If there are multiple slates, none of which has been properly certified, Congress must choose. Congress will also intervene if at least one House member and one Senator object to a state’s electors. In choosing a slate, both Houses must agree. If there’s no agreement, the Act says that Congress must select the slate (if any) that has been approved by the “state executive,” who is the governor in most states. If there’s still no resolution, none of the electors would be counted. In 2020, the slates in all of the contested states were approved by the governor.

4. What would happen on January 6th if there were a Joe Biden slate and a Donald Trump slate from one or more states?

The House, controlled by the Democrats, would no doubt pick the Biden slate. The choice in the Senate is less certain. On January 6, the new Senate will comprise 48 Democrats and 51 Republicans. (The David Perdue-Jon Ossoff runoff in Georgia on January 5 won’t yet be certified. Kelly Loeffler, the other Georgia senator, will be seated because she was appointed to replace a retiring senator until a permanent successor could be elected.) So, it would appear that Republicans would have the edge in the Senate; but a number of Republican senators – e.g., Mitt Romney, Susan Collins, Lisa Murkowski, and Ben Sasse – have already congratulated Biden and might therefore select his slate of electors instead of Trump's. Other Republican senators might well join them.

5. Suppose neither candidate wins a majority of electoral votes.

Currently, the electoral count is Biden 306 and Trump 232. To produce a 269-269 tie, 37 electoral votes must be switched from Biden to Trump. The 12th Amendment says if neither candidate wins a majority (270) of electoral votes, the House will elect the president. Each state gets one vote and it would take 26 votes to win. Republicans in the House will control 26 or more states on January 6.

6. President Trump wanted certain states to reject the Biden electors and choose a Trump slate instead. Would that have been legal?

There's some dispute about the legislature's power to do that – especially because the process would not have been established prior to the election. It’s highly unlikely that a state legislature could simply reverse the results of the popular vote without compelling reasons. The election infirmities that Trump alleged were considered by more than 80 judges, election boards, governors, and secretaries of state from both political parties. Not a single authority determined that extraordinary irregularities existed – certainly none that would overturn the results of the 306-232 electoral vote. In fact, the president’s own Cybersecurity and Infrastructure Security Agency, which is overseen by the Department of Homeland Security, released a statement declaring that the "November 3rd election was the most secure in American history. ...There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” Even Attorney General William Barr concluded that he had “not seen fraud on a scale that could have effected a different outcome in the election.”

7. What can be done if an elector votes for someone other than the candidate to whom he is pledged?

So-called faithless electors have cast 165 votes, but their votes have never affected the presidential outcome. Currently, 33 states and the District of Columbia have laws requiring good faith, with varying remedies for electors who don’t honor their commitment. Some states punish the elector; some states void their vote; some states substitute a different elector. This past year, in Chiafalo v. State of Washington and Colorado Department of State v. Baca, the Supreme Court ruled 9-0 that each state can punish or replace presidential electors who don’t support the winner of the state’s popular vote. But the state isn’t compelled to do that; and 17 states have no such laws.

8. Turning to the debate over the electoral college versus popular voting: Why shouldn’t a national majority vote determine the presidential outcome?

In the United States, majorities rule. But there are limits. For example, the Constitution sets out certain unalienable rights, such as free speech, that majorities can’t take away. The Founders instituted a plan whereby in limited areas majorities would be authorized by the Constitution to rule. But we don’t vote to determine if you’re allowed to exercise your religious beliefs; and the federal government can’t compel a state to criminalize marijuana, even if a super-majority of Americans nationwide want marijuana to be illegal.

The electoral college is one more exception to majority rule. It’s set forth in the Constitution and designed, in part, to reinforce the institution of federalism – i.e., dual sovereignty with power divided between the federal and state governments to check them from violating individual rights. The Constitution would not have been ratified if the least populous states, and their voters, had not been protected against dominance by the most populous states.

9. From a libertarian perspective, how have majorities sometimes abused their power?

The Framers understood that pure democracy, if not constrained, can lead to suppression of minority rights. Temporal majorities in the United States have shut down speakers on our campuses, prevented homeowners in some cities from defending themselves with a handgun, forced religious business owners to provide birth control to their employees, granted racial preferences in college admissions, monitored every phone call in the nation, destroyed homes to provide land for private developers, confiscated an innocent person’s car because it was used in a crime, incarcerated minor drug offenders for decades, barred Uber drivers from offering superior taxi service – and let’s not forget slavery, Jim Crow laws, internment camps for Japanese Americans, military responses to imagined crises, and imperial wars in the name of exporting democracy. Those policies, unless and until they were checked by our courts, were supported by popular majorities. Fortunately, the electoral college was one – albeit insufficient – way by which the Framers intended to curb majority rule.

10. How do we determine the number of electors for each state?

Under our system for electing presidents, each state gets a number of electoral votes equal to the number of its representatives in the House, which depends on the state’s population, plus two additional electoral votes for the state’s two senators. Obviously, that departure from one-man-one-vote favors the smaller states. As noted, the tilt was necessary to get the less populous states to ratify the Constitution.

Currently, there are 435 members of the House and 100 senators, which means 535 electoral votes. In addition, the 23rd Amendment gave three electoral votes to Washington, DC; so, there are a total of 538. The presidential candidate who gets a majority of electoral votes – 270 or more – wins, even if that candidate does not get the most popular votes. That’s what happened in the George W. Bush versus Al Gore election of 2000 and the Trump versus Hillary Clinton election in 2016. Partly because of those elections, there’s been a concerted effort, mostly from the left, to restore popular voting instead of electoral votes as the method of electing presidents.

11. How are a state’s electoral votes divided among the presidential candidates?

Article II of the U.S. Constitution gives states broad authority to decide how their electoral votes are to be divided among the candidates. In 48 states, the candidate who gets the most votes in the state wins all of the state’s electoral votes. But the Constitution doesn’t require that rule. In Maine and Nebraska, two electoral votes go to the statewide winner, and one electoral vote goes to the winner in each congressional district. That’s much closer to proportional voting instead of winner-take-all.

12. How can winner-take-all be reconciled with the notion of one-man-one-vote?

Political outcomes are not always determined by one man, one vote. For example, it takes three-fourths of the states to ratify constitutional amendments; two-thirds of Congress to override presidential vetoes or expel a congressman; and two-thirds of the Senate to approve treaties or impeach the president.

Under winner-take-all, candidates will ignore states when they have little chance of winning the state’s popular vote – even if there are districts within the state that favor the candidate. But that problem can be fixed without resort to pure popular voting. The Maine and Nebraska alternative – because it awards electoral votes district by district – encourages candidates to campaign even in those states they might have ignored because they were so far behind in statewide polling.

13. What’s the problem with pure popular voting, nationwide?

Pure popular voting promotes sectionalism. Candidates will pay attention almost exclusively to areas where there’s a high density of voters. Consequently, popular voting favors cities over rural areas, and large states over small. It also increases the number and influence of marginal political parties that have little chance to win electoral votes. If no candidate gets a majority of popular votes, that could mean either expensive and time-consuming runoff elections, or a willingness to declare that winners don’t need a majority. But do we really want to elect a president if he’s won only, say, one-third of the popular vote, with the rest divvied up among numerous other candidates? If the answer is “no,” runoffs might be required (or rank-order voting, which is a topic for another day).

14. On balance, should we implement a national popular vote or continue with the electoral college?

On balance, I’d leave the electoral system alone. But I’d favor states adopting the Maine and Nebraska proportional voting scheme. The effect would be to curb inequities of a winner-take-all system, while preserving representative government and ensuring that the states continue to check federal power.

I note one downside, however: Currently, under winner-take-all, presidential elections in 48 states are not affected by gerrymandered districts. Proportional voting would reinstitute that risk – making it imperative that we first find a solution to the gerrymandering problem.

15. What about the National Popular Vote Interstate Compact [NPVIC], which purports to be a way of bypassing the electoral college without a constitutional amendment?

A group of activists came up with a popular voting scheme that might work without amending the constitution. Assume that a state enacts a law giving all its electoral votes to the presidential candidate who wins the national popular vote, regardless of the outcome within the state itself. And assume further that the state law says it won’t be effective unless enough other states pass the same law to yield a total of at least 270 electoral votes – the number needed to win the presidency. That scheme would force a majority of electoral votes to be cast for the winner of the national popular vote. (As this is written, 15 states plus the District of Columbia, with 196 electoral votes, have adopted that statute. Seventy-four electoral votes to go.)

16. Does the NPVIC pass constitutional muster?

I don’t believe so. The Constitution imposes at least two major roadblocks. First, there’s the Compacts Clause of Article I, Section 10: "No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State.” That clause mandates congressional consent, perhaps not for every interstate compact, but at least for those that compromise the dual state-federal scheme envisioned by the Framers. Most likely, senators from non-signatory states would withhold consent – especially senators from less populated states with significantly diminished electoral clout if the NPVIC were to become operative.

Second, there’s Section 2 of the 14th Amendment, which provides in relevant part: "[W]hen the right to vote at any election for the choice of electors for President … is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States …, the basis of representation [in Congress] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such State.” That provision suggests that any state repudiating the votes of its 21-year-old male citizens would be denied congressional representation. Even if a legislature were to choose the same electors as, say, 45 percent of the qualified voters, all of the qualified voters would be disenfranchised. That’s because the franchise is about the right to choose, and not about the choice itself. As a result, the legislature would surely not select electors by any process other than the individual ballots cast.

17. Doesn’t Article II of the U.S. Constitution leave the method of choosing electors up to the states?

Yes, it does. Article II would allow the state to decide, in advance, that electors would be chosen by, say, the governor. But once the state opts to hold an election, if the state later overrides the voters’ choice – as the NPVIC would do – then the 14th Amendment might be triggered, and the state could be subject to loss of congressional representation. To be sure, the intent of Section 2 was to encourage states to enfranchise black Americans. As a practical matter, Section 2 was never invoked against those states that denied black Americans the right to vote. In fact, two years later, Section 2 was obviated by the 15th Amendment, which guaranteed all races the right to vote. And later amendments have enfranchised women and 18-year-olds. Nonetheless, Section 2 of the 14th Amendment has not been repealed.

18. Would a state have lost congressional representation if it had accommodated President Trump’s desire for the legislature to ignore the popular vote and appoint Trump electors?

If the state legislature acted before it authorized individual ballots, then Section 2 of the 14th Amendment would not apply, because no voter would have been disenfranchised. Voters do not have a right to vote for presidential electors unless the state confers such a right by statute. But if individual ballots had been authorized by statute and properly cast, as in the 2020 election, then nullification of the votes by the legislature might conceivably risk loss of congressional representation. Still, courts would undoubtedly recognize that the legislative override was a one-time occurrence, and not the permanent policy of the state. Under such circumstances, the invocation of a never-before-used provision of the 14th Amendment would be extraordinary.


Presidential Elections: A Primer