What was the framers intention in the establishment of the Electoral College?

ByErin Blakemore

Published October 16, 2020

• 15 min read

Born of compromise and enshrined in the U.S. Constitution, the Electoral College isn’t a place. It’s a temporary voting body that elects the president of the United States. When voters select their presidential and vice-presidential candidates on Election Day, they’re actually choosing the members of this body who will cast votes on their behalf in the days and weeks after the election.

For the past 233 years, this confusing and contentious institution has split opinions and overseen some truly rocky presidential elections. It has elected five presidents who didn’t win a majority of American votes and resulted in one tie. And though most electors vote for their pledged candidates, some have historically gone back on their promises.

Every four years, debate revives over the efficacy, equality, and even necessity of this electoral system. Here’s what you need to know about how it came about, how it works, and the proposals for Electoral College reform.

The Electoral College and the Constitution

The Electoral College is the result of a series of compromises struck during the grueling Constitutional Convention of 1787. Delegates quibbled over, and discarded, a variety of ways to elect a president. Some believed citizens should vote directly while others argued that Congress should decide. Still others insisted this would give the national legislative body too much power and that the decision should lie with the states. But that was contentious, too, because delegates couldn’t agree on what role, if any, state legislators and governors should play in the process.

Giving states electoral power also raised the question of how less populous states would be represented. This was a sticking point among Southern slaveholding states, which lacked the population of their northern neighbors. Delegates from those states insisted that their enslaved residents, who were not considered citizens and would not be allowed to vote, be counted for the purpose of allocating electoral votes.

Finally, the framers hit on a solution that balanced all of these factors. Article II of the Constitution holds that each state should appoint electors equal to the number of its U.S. senators and representatives. While the size of the House of Representatives would be based on population—as determined by the U.S. Census—each state received two senators to give a small bump in power to less populous states.

The question of how to count enslaved people resulted in the notorious Three-Fifths Compromise, which determined that three out of every five slaves would be counted as persons for congressional representation, taxation, and the Electoral College.

One point that the Founding Fathers didn’t consider during their deliberations was how to distinguish between ballots for the president and vice president. This flaw would become obvious in the nation’s fourth election in 1800, which resulted in a tie between presidential candidate Thomas Jefferson and his running mate Aaron Burr. The contest was thrown to the U.S. House of Representatives, which ultimately selected Jefferson after deadlocking 35 times. In 1804, the 12th Amendment was passed to create separate votes for presidents and vice presidents in the Electoral College.

Then there was the matter of who was qualified to be an elector. The Constitution originally provided only that electors couldn’t be members of Congress or federal employees and left it up to the states to decide who they would choose and how.

In 1868, however, the 14th Amendment added a requirement that electors can’t have participated in a rebellion against the United States or have aided its enemies. More notably, it also negated the Three-Fifths Compromise by conferring citizenship on formerly enslaved people at the end of the Civil War, ensuring that each individual would be counted.

How states allocate electoral votes

States’ approaches to their electors varied from the start. At first, Connecticut, South Carolina, and Georgia’s state legislatures appointed electors directly, while other states let citizens decide. But as political factions grew, states’ procedures changed and slowly shifted this role to political parties. Now, political parties select a slate of people in each state who will stand as electors for the party’s candidate.

In the 2020 election, there will be 538 electors. To win the election, a candidate must win a majority—270 electoral votes.

To win the election, a candidate must win a majority—270 electoral votes.

State rules vary on how to allocate electoral votes. In the winner-take-all system, which is in effect in 48 states and the District of Columbia, all of the state’s electoral votes are allocated to the slate of electors chosen by the political party of the candidate who won the state’s popular vote.

Maine and Nebraska assign electoral votes by congressional district, a system that has resulted in one split election in each state. In 2008, Democrat Barack Obama won the electoral vote in the Nebraska congressional district that covers Omaha and its suburbs, while Republican John McCain won the rest of the state. In 2016, Republican Donald Trump won the electoral vote in the less populous district that covers most of Maine, and Democrat Hillary Clinton won the other district and the state’s popular vote.

In 2019, Maine became the only state to adopt a ranked-choice system in which voters rank candidates in order of preference. If no candidate receives a majority, the votes are then tabulated in rounds, and the lowest-ranked candidates are eliminated until only two are left. In the final round, the candidate with 50 percent or more of the vote wins.

Counting the votes

Though a candidate usually declares victory or concedes on Election Night, the returns reported by the media immediately after the election are only preliminary. The official count comes later, when the electors cast their official votes.

After Election Day, which takes place on the first Tuesday after the first Monday in November, states use the remainder of November and December to gather, certify, and send their electors’ formal votes for president and vice president to the National Archives and Records Administration, which administers the Electoral College.

The votes are counted in a joint session of Congress on January 6. The sitting vice president—who is also president of the Senate—presides over the session, opening the votes, reading them aloud, and passing them to two “tellers” from each chamber who count them. If one candidate receives 270 or more electoral votes, the vice president announces the results—including, sometimes, their own win or loss.

Members of Congress can object to individual electors’ returns or states’ overall returns. If a written objection is signed by at least one senator and one member of the House of Representatives, it bumps the session to a recess. The two houses then debate the objections and vote on whether to accept or reject them. Both houses must agree to reject the returns to exclude them from the final tally.

Democratic Representative Maxine Waters holds up an objection to the Electoral College vote on January 6, 2017. Formal objections require the endorsement of one member from each house of Congress. Waters didn't receive the support of any senators, and Congress certified Donald Trump's presidential victory over Hillary Clinton, with then-Vice President Joe Biden pronouncing, "It is over."

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Such formal objections have only occurred twice in history. In 1969, two members of Congress objected to a vote that had been cast by a “faithless elector,” an elector who was expected to vote in favor of Republican Richard Nixon but instead cast it for Democrat George Wallace. In 2005, two Democratic members objected to all 20 of Ohio’s votes in favor of incumbent President George W. Bush, claiming that the state’s voting process had been flawed. Both objections failed and the election results were unchanged.

The Electoral College and the popular vote

Although there hasn’t been a tie in the Electoral College since Jefferson and his running mate Burr split the votes in 1800, the U.S. House of Representatives was called in to decide the vote for a second and last time in 1824. At the time, the Democratic-Republican party had fragmented, and no candidate won the majority of the electoral votes. Ultimately, the House of Representatives chose John Quincy Adams instead of Andrew Jackson, who had won the popular vote.

The Electoral College would allow a candidate to win a majority of the popular vote and lose the election four more times in history—in 1876, 1888, 2000, and 2016.

In 1876, Democratic candidate Samuel Tilden won the popular vote but lost to Republican Rutherford B. Hayes by a single electoral vote. Disputed returns from three states led to the creation of a bipartisan commission that awarded the election to Hayes in 1877, but Southern Democrats only accepted the results when Republicans promised that federal troops would leave the South, effectively ending the period of federal intervention in the post-Civil War South known as Reconstruction. Hayes was declared the victor in Congress just two days before his term began.

Congress passed the 1887 Electoral Count Act a decade later to avoid such protracted disputes by setting the deadlines and vote-counting procedures that are still used today, but that didn’t resolve the bigger issue. In 1888, Democratic incumbent Grover Cleveland won the majority of the popular vote, but lost to Republican nominee Benjamin Harrison in the Electoral College 233 to 168.

In 2000, Democratic Vice President Al Gore won the popular vote for president by more than half a million votes. But he lost the Electoral College to Republican candidate George W. Bush 271 to 266 after the U.S. Supreme Court halted the recount of ballots in Florida, where Bush had only a narrow lead and voting irregularities had been recorded.

Sixteen years later in 2016, another Democratic candidate won the popular vote but lost the Electoral College when Hillary Clinton lost to Republican challenger Donald Trump. Clinton had a 2.86 million vote lead and 48 percent of the popular vote, but only garnered 232 electoral votes to Trump’s 306.

Unpledged and faithless electors

There has also been controversy over the electors themselves. In some elections, state parties have selected unpledged electors—electors who can vote for any candidate regardless of party affiliation. This practice was primarily used in the mid-20th century in Southern states whose conservative Democratic Party members wanted to express their displeasure with national party platforms that challenged segregation.

On the eve of the Electoral College vote in 2016, a protestor in Colorado urges the state's electors not to cast their votes for President-elect Donald Trump. Most electors vote for the candidate to whom they've pledged support but some have been known to switch loyalties.

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However, the only time these unpledged electors have been elected to the Electoral College was in 1960, when 15 unpledged Democratic electors from Mississippi and Alabama cast votes for Southern Democrat Harry Byrd instead of John F. Kennedy, the national Democratic candidate who ultimately won the election. The practice died out after the 1960s, when conservative Southerners moved their loyalties to the Republican Party.

But most electors do promise to vote a certain way in the Electoral College—and when they go against those pledges, they earn the moniker “faithless.” Thirty-two states and the District of Columbia have laws that require electors to abide by their pledges. Still, there were seven faithless electoral votes cast in 20th century elections, and another seven in the contentious 2016 election alone. During that contest, five electors pledged to Democratic contender Hillary Clinton and two pledged to Republican Donald Trump successfully switched their vote to candidates who were not in the race, such as former Democratic presidential candidate Bernie Sanders and moderate Republicans John Kasich and Colin Powell. In 2000, one elector from the District of Columbia cast a blank ballot in protest of the capital city’s lack of Congressional voting status. However, no election has ever been determined by a faithless elector.

In July 2020, the U.S. Supreme Court ruled that states can enforce electors’ pledges by penalizing rogue electors or removing them from the slate—to the dismay of Electoral College opponents, who had hoped a Supreme Court ruling affirming electors’ rights to vote as they wish would have thrown future elections into chaos and galvanized a national movement to eliminate the Electoral College.

Is Electoral College reform possible?

According to the National Archives, more than 700 proposals to reform or abolish the Electoral College have been introduced to Congress in the past two centuries. These proposals aim to address the many factors that allow a candidate to win the majority of votes and not the presidency as well as various biases within the system.

Although the framers specifically intended to ensure less populous states had a say in elections, critics claim sparsely populated states now have an unfair advantage. By guaranteeing every state at least two electoral votes to match its senatorial representation, the system gives small states more electoral votes per capita. For example, the least populous state, Wyoming, had one electoral vote per 195,000 people in the 2016 election—and California, the most populous, had one per 712,000 people.

Legal scholars note that this bias toward small states has played a decisive role in three elections, most recently in 2000. Had Electoral College votes in that election been allocated by population without the two-vote Senate bump, Gore would have defeated Bush 225 to 211.

Critics also deride the winner-take-all approach to allocating votes as undemocratic for the way it overrides the preferences of wide swaths of a state’s voters. They argue that this system favors candidates from major parties and encourages candidates to campaign in just a few battleground states that are ideologically split and disproportionately white.

One reform proposal is the National Popular Vote Interstate Compact, an agreement among states to award all of their electoral votes to the candidate who wins the popular vote nationwide. Several states have passed legislation to join the compact, but it would come into effect only when participating jurisdictions represent a majority of the Electoral College. As of October 2020, it has been enacted by 15 states and the District of Columbia and needs an additional 74 electoral votes to come into effect.

There’s also a state-level push for ranked-choice voting, which is seen as a way to force candidates to court not just their tried-and-true supporters, but voters across the political spectrum. It could also help states sidestep the effects of third-party and independent voters, whose votes can siphon off support from major candidates. In 2020, Maine will become the first state to ever use this system in a presidential election.

To abolish the Electoral College, however, would require a Constitutional amendment. This onerous process requires a two-thirds majority in both chambers of Congress, or a convention requested by two-thirds of state legislatures. A Constitutional amendment must then be ratified by the legislatures of three quarters of the states.

In 1969, the House of Representatives came close when it voted to allow for the direct election of both president and vice president, with a runoff if no candidate received more than 40 percent of the vote. But the resolution didn’t pass the Senate, and nothing similar ever made it that far again.

And not everyone believes that it should. Proponents of the Electoral College argue that the system allows states to check the power of the national government and averts the possibility of nationwide recounts that could throw elections into chaos. Rather than lament the system’s bias toward small states, they argue it encourages candidates to campaign outside of highly populated urban areas.

In the most recent Pew Research Center poll on the matter, published in March 2020, 58 percent of U.S. adults said they support eliminating the current system in favor of a popular vote. That number is split along party lines: While 81 percent of Democratic-leaning respondents said they’d nix the Electoral College, only 32 percent of Republican-leaning respondents agreed.

And so, the electoral system that has vexed America since its earliest days has proven relatively durable.

Editor's note: This story was updated on October 20, 2020, to clarify that neither candidate in the 1824 election had won the majority of electoral votes.

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