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Electing the President: The Race to 270

By Nicholas G. Karambelas

October 18, 2016

Electoral College map

The debates, the obsequious surrogates, the self-important interviews, allegedly scientific predictions, electioneering, and useless polls will intensify as we approach November 8, 2016. Out of all of this, however, the only vote that matters is the vote of the Electoral College, and the only number that counts is 270, the number of electoral votes necessary to elect a president. 

If no candidate receives 270 electoral votes, the U.S. House of Representatives elects the president and the Senate elects the vice president. The popular vote is meaningless except to historians and biographers. There have been four elections in our nation’s history in which the candidate who received more than 270 electoral votes, and thus elected president, won less than a majority of the popular vote.  

The Electoral College 

The function and operation of the Electoral College is set forth in the U.S. Constitution as supplemented by federal law.[1]  The means by which a president is elected was one of the most vigorously debated issues at the Constitutional Convention of 1787.[2]  The proposals ranged from popular vote to vote by the state legislatures to vote by the governors of the states. 

Leaving aside jokes about the Electoral College not having a football team, the electoral vote is the single most significant event in U.S. presidential elections. In seventh grade civics we learn that the electors from each state elect the president. We may also learn that if no candidate receives a majority of 270 electoral votes out of a total of 538 votes, the House of Representatives elects the president. Our education on this matter usually stops here. 

The term “electoral college” does not appear in the Constitution. In the U.S. Code the term is used to describe the electors as a group.[3]  The Electoral College is not an organization or entity and it does not have an address or staff. Each state’s number of electors is equal to its representation in Congress—two senators and a set number of representatives in the House based on population.[4]  Generally, there is one representative for every 500,000 people in a state. The District of Columbia is allotted three electors.[5]

Selection of Electors 

The Constitution leaves it to state legislatures to decide the method by which the states choose their electors.[6]  The only constitutional requirement is that an elector cannot be a person who holds an “Office of Trust or Profit under the United States,” nor can an elector be a person who has “engaged in insurrection or rebellion against the [United States], or given aid and comfort to the enemies thereof.”[7] 

The states use one of three methods for selecting electors: by the political parties, by the political parties’ executive committees, or by party convention. In the District of Columbia, the executive committee of each party selects the persons to be electors. In Maryland, the selection of electors is left up to the parties. In Virginia, electors are chosen at each party’s convention.  

The profiles of persons selected to be electors vary widely. Usually electors are persons who have demonstrated loyalty to the party such as state or local elected officials, state and local appointees, and persons who are otherwise connected to the party.  

Election of Slate of Electors 

On Election Day the voters elect the electors. In some states the electors selected by each party are listed on the ballot under the names of the party’s presidential and vice presidential candidates. In other states, only the names of the presidential and vice presidential candidates appear on the ballot.  

Even though it may appear that the voter is voting for the president and vice president, he or she is actually voting for the electors selected by each party. Whichever ballot is used, the voter votes for one slate of electors. In 48 states and the District of Columbia, the slate of electors that receives a simple majority of the popular vote is the electoral slate of the state. 

Maine and Nebraska, on the other hand, use the congressional district method of distributing their electoral votes (the former since 1972, and the latter since 1996). The candidate who wins a majority of the popular vote in a congressional district is allotted one electoral vote. The candidate who wins a majority of the statewide popular vote is allotted the state’s remaining two electoral votes. In April 2016, and for the 15th time, the Nebraska legislature considered a bill that would have returned the state to the winner-take-all method of choosing its electors. The bill failed, and Nebraska still uses the congressional district method.  

Competing Slates of Electors and the Electoral Count Act  

Although the state legislatures choose the method by which their electors are selected,[8]  the Constitution is silent on which slate of electors to count if the laws of a state have the effect of certifying two slates of electors. 

This issue arose in the 1876 election between Republican Rutherford B. Hayes and Democrat Samuel Tilden. Tilden had won a solid majority of the popular vote, including all of the former Confederate states. However, the Republicans controlled the state governments of South Carolina, Florida, and Louisiana, as well as the state election officials in each of those states. The Republicans challenged the majority Democratic votes in those three states on the grounds that Democrats had used force and intimidation to prevent newly enfranchised blacks from voting. The Republicans managed to discount enough Democratic votes to give Hayes a majority of the popular vote and, thus, the electoral vote.  

None of those states had a law that mandated that the state certify only one slate of electors. Thus, the Republicans submitted new electoral vote totals to Congress by which Hayes was the president-elect, while the Democrats submitted the original electoral vote totals that made Tilden the president-elect. After much political wrangling, Congress created an electoral commission that ultimately selected the Republican slate, and Hayes became president.[9] 

The election remained hotly disputed even after Hayes was declared to be president. Politics was less civilized in the late 19th century than they are today, and name calling was common. (Hayes was called “His Fraudulency.”) In 1887 Congress passed the Electoral Count Act (ECA) to resolve the issue of competing slates of electors without having to resort to an ad hoc solution like an electoral commission.[10]  The ECA effectively put Congress in the place of the electoral commission. It mandates that: 

  • If a state submits one slate, then Congress must count that slate as long as the state (1) designated its electors under state laws that were enacted before the November election, and (2) the slate was certified no later than six days before the day on which Congress sets for the electors to vote. 
  • If a state submits more than one certified slate of electors, the House of Representatives and the Senate must agree on which slate of electors to count. 
  • If the House and Senate do not agree, then the slate certified by the state governor is counted. 
  • If the state governor does not certify a slate, or certifies more than one slate, none of the electoral votes from that state is counted. The ECA is the law to this day.
Vote of the Electors and Tally by Congress Under the ECA 

Once the national election is over, the public will as usual ignore the Electoral College. However, the election process continues under the ECA. The only significance of the election results on November 8 will be that, based on the popular vote of each state, each candidate for president and vice president is allocated electoral votes. No president and/or vice president is elected until the electors have voted. 

 As soon as possible after November 8, the governor of each state will certify to the Archivist of the United States the names of the electors elected on November 8 and the number of votes cast for each elector.[11]  On or before December 19, the governor also will deliver the same certificate to each elector.[12]  This procedure makes official the electors from each state who are credentialed to vote for president and vice president. 

On December 19, the slates of electors that the voters in each state have elected will meet, usually in their state capitals, and vote for president and vice president.[13]  They vote separately for president and vice president and place the results in six certificates. The electors then transmit the certificates as follows:[14]

  • To the president of the Senate who is also the sitting vice president; 
  • To the state official designated by the governor, usually the secretary of state of each state; 
  • To the Archivist of the United States; and 
  • To the judge of the district in which the electors meet to vote.[15] 

If the foregoing officials have not received the certificates from one or more states by December 28, the president of the Senate, or in his or her stead, the Archivist, is authorized to obtain the certificates from the aforementioned district judge by special messenger. 

On January 6, 2017, Congress will meet in a joint session to tally the electoral votes.[16]  There is an elaborate procedure for counting the electoral votes.[17] Once Congress has tallied the electoral votes and declared the results, the presidential and vice presidential candidates who have a majority of the electoral votes are elected and become president and vice president after they are inaugurated on January 20. 

Contingent Elections and the ‘Faithless Elector’ 

Because the president and vice president are to be elected by a definite number of electoral votes, the drafters of the Constitution had to provide a process for electing a president and vice president if no candidate receives a majority of the electoral votes. The solution was to have the House elect the president.  

An election that is decided by the House is referred to as a contingent election. Except for the 1824 election between John Quincy Adams and Andrew Jackson, in every presidential election in U.S. history the candidate who received a majority of the electoral votes became president. However, commentators have analyzed closely contested elections and found that slight changes in the events or different interpretations of the law could have reversed the results of those elections.[18] 

Neither the Constitution nor any federal law requires that an elector vote for the presidential and vice presidential candidates on whose slate the elector appears.[19]  An elector may even vote for a person who is not on the ballot. Known by a somewhat inaccurate term, the “faithless elector” is an elector who does not vote for the presidential and vice presidential candidates on whose slate the elector was selected.  

The states attempt to prevent the faithless elector by making the elector take a pledge, by imposing fines, or by nullifying the faithless elector’s vote. The District of Columbia and Maryland require a combination of pledges and fines. Virginia law addresses the issue but is ambiguous. Most likely, none of these measures is constitutional. There have been faithless electors but they have been rare.[20]  No election result has ever been changed because of the vote of a faithless elector. 

Unresolved Issues Under the ECA 

The ECA is political compromise. While it is an improvement on the electoral commission system of 1876, it leaves unresolved crucial issues such as: 

  • Where the state submits one certified slate, whether and the extent to which Congress can review the state law under which the slate was selected to determine if the law is legally proper. 
  • Whether Congress can reject a certified slate on the grounds that the election of the slate was fraudulent or corrupt even though the state law was legally valid. 
  • Whether the ECA is constitutional. 

During the 10-year debate over the ECA, opponents argued that a process for counting electoral votes can only be made by amending the Constitution. Supporters countered that the right of Congress to establish an electoral vote process was incident to its power to count electoral votes so that an amendment was not necessary.[21] 

Each of these issues is nuanced and might be a ground for challenging the certified electoral votes in key states. If such challenges are successful, then it is possible that no candidate receives a majority of the electoral votes.  

The only elections in which the ECA figured prominently were those between Benjamin Harrison and Grover Cleveland in 1892, and between George W. Bush and Al Gore in 2000. However, in those elections Harrison and Bush each received majority of the electoral votes. No contingent election was necessary. 

Contingent Elections Before and After the Twelfth Amendment 

Before the Twelfth Amendment, the electors were presented with one list of candidates. The elector cast one vote for his first preferred candidate and one vote for his second preferred candidate. The candidate who received a vote total equal to a majority of the electoral votes was elected president, and the candidate who received the second highest vote total was elected vice president.[22]  If no candidate received a majority of the votes of the electors or there was a tie vote, the House would elect the president from the list of five candidates who received the most votes.  

Each state had one vote. The method by which the representatives of each state determined for whom the state would vote was left up to the states to decide. The candidate who received the highest vote total of the votes of the states was elected president, and the candidate who received the second highest vote total was elected vice president. 

The flaw was that the electors cast their two votes for individual candidates rather than one vote for president and one vote for vice president. The drafters did not anticipate or appreciate the rapid development of political parties, which are not mentioned anywhere in the Constitution. This flaw was the basis of the disputed 1800 election between Thomas Jefferson and Aaron Burr. 

The Twelfth Amendment, which took effect in 1804, was meant to correct the flaw. To this day it is and remains the highest and only legal authority on how contingent elections are conducted. The only presidential election that was a contingent election occurred in 1824 between Adams and Jackson. A contingent election for vice president between Martin Van Buren and William Henry Harrison in 1836 was conducted by the Senate.  

The Twelfth Amendment does not address all of the issues that could arise in a contingent election, but it does address the following:[23]

  • The House must immediately choose the president. 
  • The election must be conducted by ballot. 
  • Each state casts one vote. 
  • There must be a quorum of two-thirds of the states present, which is 34. A state is present as long as at least one representative of the state is present. 
  • A candidate must receive a majority of the votes of the states, which is 26. 
  • If the House does not elect a president before the date on which the term of the incumbent president expires, which is noon, Eastern time, on January 20, 2017, the vice president elected by the Senate serves as acting president until the House elects a president. 

The Twenty-Third Amendment enables citizens of the District of Columbia to vote in presidential elections and provides the District three electoral votes. However, because the District is not a state, it does not have a vote in a contingent election. 

House Precedents 

The House makes its own rules of procedure.[24]  The current rules of the House do not address procedures it would use in a contingent election.[25]  There are House precedents that address procedures that are persuasive but are not legally binding on the House. Most likely, the House would consider the procedures used in the Adams–Jackson 1824 election as precedents.[26]  In that election, the House appointed a select committee with one representative from each state to draw up special rules for the contingent election. The basic rules were: 

  • The House meets in closed session. 
  • Motions to adjourn are not heard unless offered and seconded only by the state delegations and not by individual representatives. 
  • The House must conduct the contingent election to the exclusion of any other business. 
  • The vote is taken by secret ballot. 
  • Each state delegation chooses a candidate. The candidate who receives a majority of the votes cast is the choice of the delegation. The state then casts its one vote for that candidate in the House election. This rule is silent on the role, if any, of the House where a state delegation is deadlocked, or the rules by which the representatives decided on the state vote were ambiguous, or the process of deciding on the state vote was improper. 
The Twentieth Amendment and the Presidential Succession Act 

Before the Twentieth Amendment, the term of the incumbent president and vice president expired on March 4. Under the Twentieth Amendment, the term of the incumbent president and vice president expires on January 20, and the term of the incumbent Congress expires on January 3.[27]

The electoral vote becomes official on January 6 when Congress tallies the votes so that whether a contingent election is necessary is not known until that tally is complete. Because the new Congress is sworn in on January 3, which is before the tally has occurred, the Congress that is elected on November 8 conducts the contingent election. In the unlikely event the House does not elect a president but the Senate does elect a vice president, then the vice president becomes the acting president until the House elects a president.[28] 

If no president or vice president has been elected, Congress is empowered to make a law but not a rule for this circumstance. The law that Congress enacted is the Presidential Succession Act of 1947, which sets forth the officers who succeed sequentially to the presidency.[29]  Each such officer must be a natural-born citizen over the age of 35 years. Also, each such officer must vacate any office that he or she currently holds. 

The first officer in the line of succession is the Speaker of the House. The next in line is the president pro tempore of the Senate, followed by the Secretary of State. The line then goes down the list of cabinet secretaries according to the date on which the cabinet was established, from oldest to newest. The Act may be unconstitutional because, arguably, neither the Speaker of the House nor the president pro tempore of the Senate are “Officers” within the meaning of the Succession Clause in article II, section 1, of the Constitution. 

Proposed Reforms to the Electoral College 

Over the years commentators have proposed that the Electoral College be reformed. Proposals have ranged from eliminating it altogether to allocating one electoral vote per congressional district (as has been the case with Maine and Nebraska) to having a contingent election be decided by the vote of each representative rather than by the vote of each state.[30]  Another proposal, which has been adopted in different forms by some states, is that each state enact a law that requires the governor to certify only the slate of electors for the presidential and vice presidential candidates who received the most popular votes in the state.  

Third-Party Prospect 

The Libertarian Party has nominated former governors for president and vice president and claims to be on the ballot in each of the 50 states. Third-party candidates have not been successful. Former president Theodore Roosevelt of the Bull Moose Party was the last third-party candidate to receive more electoral votes than a major party candidate, but he still lost to Democrat Woodrow Wilson in the four-way contest in the election of 1912. In Clinton–Bush 1992, third-party candidate Ross Perot received about 19 percent of the popular vote but he did not receive any electoral votes. 

It is unlikely that Libertarian candidates will receive 270 electoral votes. However, it is possible that they could deny both of the major party candidates the 270 electoral votes needed to win and, thus, cause a contingent election. 

Even if one of the candidates has 270 electoral votes after the November election, the other candidates can seek to challenge that result. They can allege that the election laws in key states are unconstitutional in substance or as applied, or that the ECA is unconstitutional because the manner in which electoral votes are counted must be mandated in an amendment to the Constitution and not by a statute enacted by Congress. If any of these challenges is successful, then enough electoral votes could be discounted so that no candidate receives 270 electoral votes and a contingent election must be held.

If a contingent election is necessary, the country will face a political drama far beyond Bush–Gore 2000.  


Nicholas G. Karambelas is a partner at Sfikas & Karambelas, LLP. Reach him at nick@ngklaw.com
Notes

[1] U.S. Const. art. II, § 1; 3 U.S.C. §§ 1–17. 
[2] Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 1 at 68 (rev. ed. 1966). 
[3] 3 U.S.C. § 1. 
[4] Id. § 3. 
[5] U.S. Const. amend. XXIII; 3 U.S.C. § 21(a). 
[6] U.S. Const. art. II, § 1. 
[7] Id.; U.S. Const. amend. XIV. 
[8] U.S. Const. art. II, § 1. 
[9] Ari Hoogenboom, Rutherford B. Hayes: Warrior & President, University Press of Kansas (1995). 
[10] 3 U.S.C. § 1, et seq. 
[11] Id. § 6. 
[12] Id. 
[13] Id. §§ 7, 8. 
[14] Id. § 9. 
[15] Id. § 11. 
[16] Id. § 15. 
[17] Id. 
[18] Edward B. Foley, Ballot Battles: The History of Disputed Elections in the United States, Oxford University Press (2016). 
[19] Ray v. Blair, 343 U.S. 214 (1952). 
[20] Robert W. Bennett, The Problem of the Faithless Elector: Trouble Aplenty Brewing Just Below the Surface in Choosing the President, 100 NW U. L. Rev. 121 (2006).
[21] Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 514 (2004). 
[22] U.S. Const. art. II, § 1. 
[23] Nathan L. Colvin and Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Miami L. Rev. 475 (2010). 
[24] U.S. Const art. I, § 5. 
[25] Rules of the House of Representatives, 114th Congress (January 6, 2015). 
[26] U.S. Congress, Hinds’ Precedents of the House of Representatives, vol. 3 ch. 58 (GPO 1907). 
[27] U.S. Const. amend. XX, § 1. 
[28] Id. § 3; 3 U.S.C. § 19. 
[29] 3 U.S.C. § 19. 
[30] John C. Fortier, ed., After the People Vote: A Guide to the Electoral College, 3d ed., AEI Press (2004).