Where did the Electoral College come from?
The creation of the institution now known as the Electoral College remains an integral part of the evolution of the American constitutional order and electoral system. Work on the shape and content of the Constitution, regulating, among other things, the principles of election and functioning of the central authorities of the United States, began with the deliberations of the Constitutional Convention organised in 1787 in Philadelphia.
During the discussions between the representatives of the Confederate States, apart from resolving the dispute over whether the central organ of the executive power should be a single- or multi-person office in favour of a single-person office, three basic proposals regarding the method of its selection were considered. The delegates discussed the possibility of selection by legislative bodies (which, however, would raise certain doubts regarding compliance with the principle of separation of powers), by universal suffrage (which, however, raised certain problems related to the different regulations on citizenship in individual states), or by state-level legislative bodies. Interestingly, the proposal to introduce the institution of electors as a compromise solution, guaranteeing the importance of both the states and the citizens, was initially rejected. However, during further discussions, in July 1787, this proposal found the required support.
Work on the content of the regulations regarding the method of electing the US President was entrusted to the so-called Committee of Postponed Matters, which prepared a draft containing a proposal for the election of the president by electors. This draft – after being approved by the Convention and additional work in other committees – was transformed into the content of the currently applicable Article 2, sec. 1 sentence.3 of the United States Constitution – "Each State shall, in such Manner as the Legislature thereof may direct, appoint a Number of Electors."
The Constitution also contains solutions regarding the method of voting by the Electoral College (individual voting, using ballots for two people, of whom at least one should not be a resident of the same state as they are), procedures to be followed in the event that, through the aforementioned voting, none of the candidates receives the required majority, and a ban on appointing to this position senators, members of the House of Representatives and persons who hold "(...) an honorary or salaried office in the service of the United States."
In turn, the problems and doubts that arose in connection with the implementation of the above regulations were resolved by means of federal laws (e.g., with regard to the time limit required for the election of electors) and constitutional amendments - the 12th Amendment of 1803, detailed the voting procedure by indicating that the elector casts one vote for the president and one vote for the vice-president), while under the 23rd Amendment the elector casts one vote for the president and one vote for the vice-president. The 1961 amendments granted the District of Columbia "the same number of electors to which it would be entitled if it were a State, but not more than the number of the least populous State."
Method of selecting electors
It should be pointed out that the Constitution has delegated authority over the method of selecting electors to the relevant state bodies – “Each state shall appoint, in a manner determined by its legislative body, an appropriate number of electors.” This means that state authorities had the ability to individually regulate the method of appointing electors, including the nomination of candidates for electors and the method of assigning electors to a specific candidate after the state election.
Currently, in terms of how members of the College are selected, the rule is the popular vote. In turn, the nomination of candidates for electors is the responsibility – in the overwhelming majority of cases – of state conventions of political parties, and in selected states the governor, the presidential candidate, the state party board, or the candidate is selected by popular vote.
The specific rule for the allocation of electoral votes is “the winner takes all” formula, which means that the allocation is done on a disproportionate basis – it only takes one supermajority vote in the popular vote for all electoral votes to go to one candidate in a given state (with the exception of Maine and Nebraska, which allow votes to be split between candidates).
Electors are obligated to vote for the candidate nominated by the political party that also nominated the electors (e.g., an elector nominated by the Democratic Party should cast their vote for the Democratic candidate). Members of the College who do not comply with the above requirement are referred to as "Faithless"). In some states, criminal penalties and/or fines are provided for this type of deviation.
Number and scope of electoral competences
The Electoral College currently consists of 538 electors, equal to the total number of members of the House of Representatives and Senators, plus three electors representing the District of Columbia (which has no representation in the United States Congress). According to the constitutional regulation, each state is entitled to a number of electoral votes, which corresponds to the total number of senators (each state has two representatives in the Senate) and members of the House of Representatives (whose number remains dependent on the size of the population – in this case, the division of seats is made once every 10 years after the next census).
The Electoral College was empowered to accomplish one specific goal – electing the president and vice president. It is held by written vote in "their states" – the electors do not gather in one place to hold a general vote. After the vote (which should be held on the first Monday after the second Wednesday in December), separate lists are compiled with the names of the candidates and the number of votes cast for them, which are then sent to the President of the Senate. The opening of the aforementioned lists in the presence of the Senate and the House of Representatives immediately precedes the counting of votes. To win the election, it is necessary to obtain the largest number of votes, which must constitute an absolute majority of the votes of the appointed electors (at least 270).
Article 2 sec. 1 of the Constitution also provides for a regulation in the event that no candidate obtains the above-mentioned majority – in the case of the president, the choice from among the three candidates with the highest number of electoral votes is made by the House of Representatives, voting with the states (each state has one vote, and the victory requires the votes of more than half of the states); in the case of the vice-president, the competence to choose, from among the two candidates with the highest number of electoral votes, belongs to the Senate (similarly, the candidate must obtain more than half of the senatorial votes).
The above requirements for obtaining electoral votes, as well as the fact that the number of electors varies from state to state (from three to fifty-five), significantly determines the candidates' campaign strategy – because the peculiarities of the electoral system in the US mean that it is not at all necessary to obtain a majority of the popular vote to win a presidential election, as we saw, for example, in 2016 (about 3 million more eligible voters voted for Hilary Clinton than for Donald Trump, who nevertheless obtained the required number of electoral votes).
Text: Dr Jakub Stępień
Department of Constitutional Law, University of Lodz / Center for Anglo-American Legal Tradition, University of Lodz
ORCID: 0000-0003-0106-680
The article is a part of the ConLaw24 series, in which the Center for Anglo-American Legal Tradition takes a closer look at the intricacies of the American legal and political system. We will publish new texts every Tuesday until election day.