By Todd Whitten, Department Chair
You can listen to this blog post here.
WE the people are going to be hearing a lot about the Electoral College in the coming days, weeks and possibly months, so I thought it would be helpful to do a quick explanation of what this is and how it works so you can impress your friends and family and drop a few facts on Election Night.
The Electoral College exists because the Founders didn’t trust the American people. It is that simple. WE the people are, to their minds, a mob of passion-driven, uneducated, and not-too-bright rabble, and there needs to be a check on our ability to put anyone into the highest offices of the land. Doubt me? In the Constitution, the House of Representatives is the only government body where the people directly elect the members. And they only serve 2 years! Senators were originally selected by the state legislatures (This was undone in April 1913 by the 17th Amendment, so now we vote for them), Supreme Court justices are appointed and confirmed, and the President is elected by the Electoral College. So, yeah, the Founders didn’t trust us all that much.
The Electoral College was instituted to be a brake on the passions of the populace, and is described in three places in the Constitution: Article II, section 1, Paragraph 2; the 12th Amendment; and the 20th Amendment. What follows is a mash up of the info in all three places.
Every state in the union is a member of the Electoral College and thus gets to have Electors. The number of Electors is equal to the total number of officials that the state sends to Congress; every state has 2 Senators, and the House of Representatives is determined by the state’s population, which is counted every 10 years in the Census. Massachusetts has 2 Senators and 9 Members of the House, so our state gets 11 Electors.
There are a total of 538 Electors in the country. The Constitution says that a simple majority of Electoral votes are needed to win, so the magic number to win the office is 270.
WE the people will vote November 3, 2020. The votes by the Electors are cast on December 14, 2020. They are called “Certificates.” Those Certificates are delivered either by hand or by registered US Mail by December 23, 2020, to the President of the Senate or the Congressional Archivist. On January 6, 2021 at 1 pm, a joint session (that’s both Houses of Congress) will be called. The certificates are opened at that time and in that place by the President of the Senate, and the votes are counted in front of all of Congress. When 270 is reached, a winner is declared and counting stops.
The Certificates can be challenged for legitimacy and accuracy. The challenge has to be in writing and signed by one Representative and one Senator. If that happens, the count is suspended, the two Houses return to their chambers, and the objection is debated for up to 2 hours. A vote is taken to uphold or overturn the objection to the Certificate. If both Houses uphold the objection, the Certificates are discarded and the counting resumes. If they disagree, the Certificates stand and the counting resumes. If there is no majority of votes (no candidate gets to 270), then the winner is determined by a vote in the House of Representatives, where each state’s delegation gets one vote. The majority winner of that vote becomes President/Vice President. We’ve never done this…
So who gets to be Electors?
Here’s where it gets messy. The Constitution states that “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors…” Yes, that means that each state’s legislature has said “Here’s how to be an Elector.” The only requirement is that Electors can’t be “members of Congress or hold any office of Trust or Profit under the United States.”
So I could be an Elector. You could be an Elector. The state legislature has to determine who can be an Elector. Initially, the writers of the Constitution thought that an Elector should be a person of “Continental Character;” the idea was that it would be someone who is educated and informed about current events, and who would have a sense of the type of leader the country needed. That Elector would then be empowered to vote their conscience for the best choice, regardless of what the popular vote was. Then things started to change.
The big change was the creation of political parties, a rather huge blind spot in the Constitution’s text. As parties rose, most, if not all, the states, ceded their power to appoint electors to the party apparatus. So it became common practice, if not actual law in some cases, that the party whose candidate won the popular vote got to control that state’s Electors. So rather than “Continental Character,” party loyalty became the quality most sought after. The idea behind this is that a party loyalist wouldn’t cast a ballot against their candidate. So if Massachusetts went for a Democrat, the Electors would be Democrats. If it went Republican, the Electors would be Republicans.
In many cases, though, this isn’t enshrined in law, it is just a norm. Constitutionally, state legislatures still have control of Electors and can select them as they see fit.
In some cases as well, there are no penalties for being what’s called a “faithless Elector,” and casting a vote that runs contrary to the popular vote winner. That was, after all, the exact intent of the Founders. Several states have enacted legal penalties for faithless Electors, and in July of this year, the Supreme Court ruled that such penalties are constitutional, and more states are enacting them to bring the Electoral College in line with the popular vote.
All this means that this year it is even less likely than other years we will know who has been elected President. Technically we’ve never known the results of the election on election night; we’ve known what the media’s exit polling and what state’s reporting says the popular vote was. (Side note: We never should have gotten used to the media “calling” a state with 1% of the vote being counted!)
The popular vote has been adhered to by the vast majority of Electors in this country’s history, so in modern history there has never been much reason to doubt the outcome of the counting of Elector’s Certificates in January. In 2000, however, that process was thrown into doubt when the state of Florida’s Electors were in limbo due to a popular vote that was highly contested between Al Gore (D) and George W. Bush (R). Ultimately, the Supreme Court ruled that there was no longer enough time to continue recounting the popular vote ballots in Florida and give Electors time to vote and deliver the Certificates to Washington DC, and so the ballot counting was suspended and George W. Bush gained control of Florida’s Electors and thus won the White House. (Side note: Again, the national popular vote doesn’t matter at all, it is the popular vote at the state level that matters. So despite Hillary Clinton getting more popular votes overall in 2016, that didn’t impact the number of electors she got. For instance, once she won California, she got their Electors. It didn’t matter if she won California by 1 vote or 10 million votes to the distribution of Electors.) Under the Constitution, though, if Florida couldn’t get its Certificates to Washington DC in time, then they just wouldn’t get counted, and the number to win would drop because there would be fewer Electoral Certificates to count.
During a pandemic where the US Postal Service has had mail sorting machines taken out of service, where states have had to cope with a flood of mail in ballots, where it looks like a record number of people are voting, and where some states are prohibited from counting ballots except within a strict window of time and other states have large windows in which to count, it seems probable that we will have a number of delays in knowing the outcome of the popular vote.
It also is possible (though how probable is uncertain), that some states could step away from their norms surrounding the Electoral College and who gets control of the Electors. If that should happen, it is also possible (though again, how probable is unclear) that there could be challenges to the Certificates on January 6.
All in all, we should be prepared for the possibility (note: not the probability, the possibility) of not knowing a winner of the Presidency until the wee small hours of the morning of January 7.
I’ll close with the wisdom of the Hitchhiker’s Guide to the Galaxy, which says on it in comforting letters: