Background Informationon the U.S. Electoral Process
KEY DATES FOR THE ELECTORAL COLLEGE IN 2000
November 7, 2000 - General Election: The voters in each state choose Electors to serve in the Electoral College. As soon as election results are final, the states prepare seven "Certificates of Ascertainment" of the Electors chosen, and send one original along with two certified copies to the Archivist of the United States.
December 18, 2000 - Meeting of Electors: The Electors in each State meet to select the president and vice president of the United States. The Electors record their votes on six "Certificates of Vote," which are paired with the six remaining original "Certificates of Ascertainment." The Electors sign, seal and certify the packages of electoral votes and immediately send them to the president of the Senate, the Archivist of the United States and other designated federal and state officials.
December 27, 2000 - Deadline for Receipt of Electoral Votes: the president of the Senate, the Archivist of the United States, and other designated federal and state officials must have the electoral votes in hand.
January 6, 2001 - Counting Electoral Votes in Congress: The Congress meets in joint session to count the electoral votes (unless Congress passes a law to change the date).
FREQUENTLY ASKED QUESTIONS ON THE ELECTORAL COLLEGE
Who selects the Electors?
The process for selecting Electors varies throughout the United States. Generally, the political parties nominate Electors at their state party conventions or by a vote of the party's central committee in each state. Electors are often selected to recognize their service and dedication to their political party. They may be state elected officials, party leaders, or persons who have a personal or political affiliation with the presidential candidate. Then the voters in each state choose the Electors on the day of the general election. The Electors' names may or may not appear on the ballot below the name of the candidates running for president, depending on the procedure in each State.
What are the qualifications to be an Elector?
The U.S. Constitution contains very few provisions relating to the qualifications of Electors. Article II, section 1, clause 2 provides that no senator or representative, or person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. As a historical matter, the 14th Amendment provides that state officials who have engaged in insurrection or rebellion against the United States or given aid and comfort to its enemies are disqualified from serving as Electors. This prohibition relates to the post-Civil War era. A state's certification of Electors on its Certificates of Ascertainment is generally sufficient to establish the qualifications of Electors.
Is a vote for president and vice president meaningful in the Electoral College system?
Yes, within a state a vote has a great deal of significance. Under the Electoral College system, we do not elect the president and vice president through a direct nationwide vote. The presidential election is decided by the combined results of 51 state elections (in this context, the term "state" includes D.C.). A single vote helps decide which candidate receives the state's electoral votes. It is possible that an Elector could ignore the results of the popular vote, but that occurs very rarely.
The founders of the nation devised the Electoral College system as part of their plan to share power between the states and the national government. Under the federal system adopted in the Constitution, the nationwide popular vote has no legal significance. As a result, it is possible that the electoral votes awarded on the basis of state elections could produce a different result than the nationwide popular vote. Nevertheless, the individual citizen's vote is important to the outcome of each state election.
Are Electors required to vote for the candidate who won his or her state's popular vote?
There is no Constitutional provision or federal law that requires Electors to vote according to the results of the popular vote in their states. Some states (24 plus D.C. at last count) require Electors to cast their votes according to the popular vote. These pledges fall into two categories -- Electors bound by state law and those bound by pledges to political parties.
The Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from Electors to vote for the parties' nominees. Some state laws provide that so-called "faithless electors" may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute Elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.
Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party's candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of Electors have voted as pledged.
How is it possible for the electoral vote to produce a different result than the nationwide popular vote?
It is important to remember that the president is not chosen by a nationwide popular vote. The electoral vote totals determine the winner, not the statistical plurality or majority a candidate may have in the nationwide vote totals. Electoral votes are awarded on the basis of the popular vote in each state.
Note that 48 out of the 50 states award electoral votes on a winner-takes-all basis (as does D.C.). For example, all 54 of California's electoral votes go to the winner of that state election, even if the margin of victory is only 50.1 percent to 49.9 percent.
In a multi-candidate race where candidates have strong regional appeal, as in 1824, it is quite possible that a candidate who collects the most votes on a nation-wide basis will not win the electoral vote. In a two-candidate race, that is less likely to occur. But it did occur in the Hayes-Tilden election of 1876 and the Harrison-Cleveland election of 1888 due to the statistical disparity between vote totals in individual state elections and the national vote totals.
Why do we still have the Electoral College?
The Electoral College process is part of the original design of the U.S. Constitution. It would be necessary to pass a constitutional amendment to change this system.
Note that the 12th Amendment, the expansion of voting rights, and the use of the popular vote in the states as the vehicle for selecting Electors has substantially changed the process.
Many different proposals to alter the presidential election process have been offered over the years, such as direct nationwide election by the people, but none have been passed by Congress and sent to the states for ratification. Under the most common method for amending the Constitution, an amendment must be proposed by a two-thirds majority in both houses of Congress and ratified by three-fourths of the states.
What proposals have been made to change the Electoral College system?
Reference sources indicate that over the past 200 years, over 700 proposals have been introduced in Congress to reform or eliminate the Electoral College. There have been more proposals for Constitutional amendments on changing the Electoral College than on any other subject. The American Bar Association has criticized the Electoral College as "archaic" and "ambiguous" and its polling showed 69 percent of lawyers favored abolishing it in 1987. But surveys of political scientists have supported continuation of the Electoral College. Public opinion polls have shown Americans favored abolishing it by majorities of 58 percent in 1967; 81 percent in 1968; and 75 percent in 1981.
Opinions on the viability of the Electoral College system may be affected by attitudes toward third parties. Third parties have not fared well in the Electoral College system. Candidates with regional appeal such as Governor Strom Thurmond of South Carolina in 1948 and Governor George Wallace of Alabama in 1968 won blocs of electoral votes in the South, which may have affected the outcome, but did not come close to seriously challenging the major party winner. The last third party or splinter party candidate to make a strong showing was Theodore Roosevelt in 1912 (Progressive, also known as the Bull Moose Party). He finished a distant second in electoral and popular votes (taking 88 of the 266 electoral votes needed to win). Although Ross Perot won 19 percent of the popular vote nationwide in 1992 (United We Stand Party, which was the forerunner of the Reform Party), he did not win any electoral votes since he was not particularly strong in any one or several states. Any candidate who wins a majority or plurality of the popular vote has a good chance of winning in the Electoral College, but there are no guarantees.
How do the 538 electoral votes get divided among the states?
The electoral votes allotted to each state correspond with the number of representatives and senators each state has in Congress. The distribution of electoral votes among the states can vary every 10 years depending on the results of the U.S. census.
One of the primary functions of the census is to reapportion the 435 members of the House of Representatives among the states, based on the current population. The reapportionment of the House determines the division of electoral votes among the states. In the Electoral College, each state gets one electoral vote for each one of its representatives in the House, plus two electoral votes for its two senators.
Every state has at least 3 electoral votes because the Constitution grants each state two senators and at least one representative. In addition to the 535 electoral votes divided among the states, the District of Columbia has three electoral votes because the 23rd Amendment granted it the same number of votes as the least populated state.
If a state gains or loses a congressional district, it will also gain or lose an electoral vote. As a result of the census conducted this year, the number of electoral votes allotted to your state may change for the 2004 election.
What is the difference between the winner-takes-all rule and proportional voting, and which states follow which rule?
There are 48 States that have a winner-takes-all rule for the Electoral College. In these states, whichever candidate receives a majority of the vote, or a plurality of the popular vote (less than 50 percent but more than any other candidate) takes all of the state's electoral votes.
Only two states, Nebraska and Maine, do not follow the winner-takes-all rule. In those states, there could be a split of electoral votes among candidates through the state's system for proportional allocation of votes. For example, Maine has four electoral votes and two congressional districts. It awards one electoral vote per congressional district and two by the state-wide, "at-large" vote. It is possible for Candidate A to win the first district and receive one electoral vote, Candidate B to win the second district and receive one electoral vote, and Candidate C, who finished a close second in both the first and second districts, to win the two at-large electoral votes. Although this is a possible scenario, it has not actually occurred in recent elections.
Can citizens in U.S. territories vote for president?
No, the Electoral College system does not provide for residents of U.S. territories, such as Puerto Rico, Guam, the U.S. Virgin Islands and American Samoa to vote for president. Unless citizens in U.S. territories have official residency (domicile) in a U.S. state or the District of Columbia (and vote by absentee ballot or travel to their state to vote), they cannot vote in the presidential election. Note that prior to the adoption of the 23rd Amendment, D.C. residents could not vote in the presidential election.
The political parties may authorize voters in primary elections in territories to select delegates to represent them at the political party conventions. But that process does not affect the Electoral College system.
What would happen if two candidates tied in a state's popular vote, or there was a dispute as to the winner?
A tie is a statistically remote possibility even in smaller states. But if a state's popular vote were to come out as a tie between candidates, state law would govern as to what procedure would be followed in breaking the tie. A tie would not be known of until late November or early December, after a recount and after the secretary of state had certified the election results. Federal law would allow a state to hold a run-off election.
A very close finish could also result in a run-off election or legal action to decide the winner. Under federal law (3 U.S.C. section 5), state law governs on this issue, and would be conclusive in determining the selection of Electors. The law provides that if states have laws to determine controversies or contests as to the selection of Electors, those determinations must be completed six days prior to the day the Electors meet.
FREQUENTLY ASKED QUESTIONS ON ELECTIONS AND VOTING IN FLORIDA
What percentage comprises a majority win in a primary?
50 percent plus 1.
How many voting machines must be provided to each precinct?
One voting machine shall be provided for each 400 electors in the county, except that in any county in which 25 percent or more of the registered electors are 60 years of age or older, the supervisor of elections must provide at least one machine for each 350 registered electors.
Where does a candidate, elector or taxpayer file if he wants to contest the election returns?
With the Clerk of the Circuit Court; must be filed within 10 days of certification of results or within 5 days after canvassing board certifies results following a protest.
Where does a candidate or elector file a protest challenging the election returns as
erroneous?
With the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 5 days after midnight of the date the election is held, whichever occurs later.
FLORIDA'S PRESIDENTIAL ELECTORS 2000
On September 1, 2000, each political party that is registered in Florida certified to the Division of Elections the names of their presidential and vice presidential candidates. Along with this certification, each party submitted the names and addresses of 25 electors. Each state is entitled to a number of electors equal to the number of members of Congress and Senators from the state. These electors that are nominated by the party take an oath to vote for the candidate on whose behalf they are nominated. In Florida, the presidential and vice presidential candidate receiving the most votes will be entitled to have his or her electors certified as members of the Electoral College. The Electoral College will meet in each state capital on December 18, 2000 to vote for president and vice president. These votes will then be certified to the president of the Senate who will officiate at the counting in Washington, D.C. on January 3, 2001.
LEGAL ASPECTS AND POSSIBLE NEXT STEPS
* The recount was triggered by the state of Florida, which requires this procedure when less than one-half of 1
percent of the vote separates the candidates.
* Florida's mandatory vote recount is being supervised by the Election Canvassing Commission, which is
responsible for certifying the results of any election for federal or statewide office. The commission is made
up of the governor (Jeb Bush), state secretary of state (Katherine Harris), and the state director of the
Division of Elections (Clay Roberts). (Governor Jeb Bush, George W. Bush's brother, has stepped aside and
will not be certifying election results.)
* Election results will not be certified until overseas ballots are counted. Overseas ballots must be postmarked
by November 7 and received by November 17.
* Private citizens who have voted in the Florida elections and believe that their constitutional rights ("one man,
one vote") have been violated, may file lawsuits in federal district court. Also, if there is an allegation of a
violation of the Voting Rights Act, a lawsuit can also be filed in federal district court.
* Candidates or private citizens who have voted in the Florida elections alleging voting irregularities, or that the
"will of the people" was subverted, may file lawsuits in Florida state court.
November 7, 2000 - General Election: The voters in each state choose Electors to serve in the Electoral College. As soon as election results are final, the states prepare seven "Certificates of Ascertainment" of the Electors chosen, and send one original along with two certified copies to the Archivist of the United States.
December 18, 2000 - Meeting of Electors: The Electors in each State meet to select the president and vice president of the United States. The Electors record their votes on six "Certificates of Vote," which are paired with the six remaining original "Certificates of Ascertainment." The Electors sign, seal and certify the packages of electoral votes and immediately send them to the president of the Senate, the Archivist of the United States and other designated federal and state officials.
December 27, 2000 - Deadline for Receipt of Electoral Votes: the president of the Senate, the Archivist of the United States, and other designated federal and state officials must have the electoral votes in hand.
January 6, 2001 - Counting Electoral Votes in Congress: The Congress meets in joint session to count the electoral votes (unless Congress passes a law to change the date).
FREQUENTLY ASKED QUESTIONS ON THE ELECTORAL COLLEGE
Who selects the Electors?
The process for selecting Electors varies throughout the United States. Generally, the political parties nominate Electors at their state party conventions or by a vote of the party's central committee in each state. Electors are often selected to recognize their service and dedication to their political party. They may be state elected officials, party leaders, or persons who have a personal or political affiliation with the presidential candidate. Then the voters in each state choose the Electors on the day of the general election. The Electors' names may or may not appear on the ballot below the name of the candidates running for president, depending on the procedure in each State.
What are the qualifications to be an Elector?
The U.S. Constitution contains very few provisions relating to the qualifications of Electors. Article II, section 1, clause 2 provides that no senator or representative, or person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. As a historical matter, the 14th Amendment provides that state officials who have engaged in insurrection or rebellion against the United States or given aid and comfort to its enemies are disqualified from serving as Electors. This prohibition relates to the post-Civil War era. A state's certification of Electors on its Certificates of Ascertainment is generally sufficient to establish the qualifications of Electors.
Is a vote for president and vice president meaningful in the Electoral College system?
Yes, within a state a vote has a great deal of significance. Under the Electoral College system, we do not elect the president and vice president through a direct nationwide vote. The presidential election is decided by the combined results of 51 state elections (in this context, the term "state" includes D.C.). A single vote helps decide which candidate receives the state's electoral votes. It is possible that an Elector could ignore the results of the popular vote, but that occurs very rarely.
The founders of the nation devised the Electoral College system as part of their plan to share power between the states and the national government. Under the federal system adopted in the Constitution, the nationwide popular vote has no legal significance. As a result, it is possible that the electoral votes awarded on the basis of state elections could produce a different result than the nationwide popular vote. Nevertheless, the individual citizen's vote is important to the outcome of each state election.
Are Electors required to vote for the candidate who won his or her state's popular vote?
There is no Constitutional provision or federal law that requires Electors to vote according to the results of the popular vote in their states. Some states (24 plus D.C. at last count) require Electors to cast their votes according to the popular vote. These pledges fall into two categories -- Electors bound by state law and those bound by pledges to political parties.
The Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from Electors to vote for the parties' nominees. Some state laws provide that so-called "faithless electors" may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute Elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.
Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party's candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of Electors have voted as pledged.
How is it possible for the electoral vote to produce a different result than the nationwide popular vote?
It is important to remember that the president is not chosen by a nationwide popular vote. The electoral vote totals determine the winner, not the statistical plurality or majority a candidate may have in the nationwide vote totals. Electoral votes are awarded on the basis of the popular vote in each state.
Note that 48 out of the 50 states award electoral votes on a winner-takes-all basis (as does D.C.). For example, all 54 of California's electoral votes go to the winner of that state election, even if the margin of victory is only 50.1 percent to 49.9 percent.
In a multi-candidate race where candidates have strong regional appeal, as in 1824, it is quite possible that a candidate who collects the most votes on a nation-wide basis will not win the electoral vote. In a two-candidate race, that is less likely to occur. But it did occur in the Hayes-Tilden election of 1876 and the Harrison-Cleveland election of 1888 due to the statistical disparity between vote totals in individual state elections and the national vote totals.
Why do we still have the Electoral College?
The Electoral College process is part of the original design of the U.S. Constitution. It would be necessary to pass a constitutional amendment to change this system.
Note that the 12th Amendment, the expansion of voting rights, and the use of the popular vote in the states as the vehicle for selecting Electors has substantially changed the process.
Many different proposals to alter the presidential election process have been offered over the years, such as direct nationwide election by the people, but none have been passed by Congress and sent to the states for ratification. Under the most common method for amending the Constitution, an amendment must be proposed by a two-thirds majority in both houses of Congress and ratified by three-fourths of the states.
What proposals have been made to change the Electoral College system?
Reference sources indicate that over the past 200 years, over 700 proposals have been introduced in Congress to reform or eliminate the Electoral College. There have been more proposals for Constitutional amendments on changing the Electoral College than on any other subject. The American Bar Association has criticized the Electoral College as "archaic" and "ambiguous" and its polling showed 69 percent of lawyers favored abolishing it in 1987. But surveys of political scientists have supported continuation of the Electoral College. Public opinion polls have shown Americans favored abolishing it by majorities of 58 percent in 1967; 81 percent in 1968; and 75 percent in 1981.
Opinions on the viability of the Electoral College system may be affected by attitudes toward third parties. Third parties have not fared well in the Electoral College system. Candidates with regional appeal such as Governor Strom Thurmond of South Carolina in 1948 and Governor George Wallace of Alabama in 1968 won blocs of electoral votes in the South, which may have affected the outcome, but did not come close to seriously challenging the major party winner. The last third party or splinter party candidate to make a strong showing was Theodore Roosevelt in 1912 (Progressive, also known as the Bull Moose Party). He finished a distant second in electoral and popular votes (taking 88 of the 266 electoral votes needed to win). Although Ross Perot won 19 percent of the popular vote nationwide in 1992 (United We Stand Party, which was the forerunner of the Reform Party), he did not win any electoral votes since he was not particularly strong in any one or several states. Any candidate who wins a majority or plurality of the popular vote has a good chance of winning in the Electoral College, but there are no guarantees.
How do the 538 electoral votes get divided among the states?
The electoral votes allotted to each state correspond with the number of representatives and senators each state has in Congress. The distribution of electoral votes among the states can vary every 10 years depending on the results of the U.S. census.
One of the primary functions of the census is to reapportion the 435 members of the House of Representatives among the states, based on the current population. The reapportionment of the House determines the division of electoral votes among the states. In the Electoral College, each state gets one electoral vote for each one of its representatives in the House, plus two electoral votes for its two senators.
Every state has at least 3 electoral votes because the Constitution grants each state two senators and at least one representative. In addition to the 535 electoral votes divided among the states, the District of Columbia has three electoral votes because the 23rd Amendment granted it the same number of votes as the least populated state.
If a state gains or loses a congressional district, it will also gain or lose an electoral vote. As a result of the census conducted this year, the number of electoral votes allotted to your state may change for the 2004 election.
What is the difference between the winner-takes-all rule and proportional voting, and which states follow which rule?
There are 48 States that have a winner-takes-all rule for the Electoral College. In these states, whichever candidate receives a majority of the vote, or a plurality of the popular vote (less than 50 percent but more than any other candidate) takes all of the state's electoral votes.
Only two states, Nebraska and Maine, do not follow the winner-takes-all rule. In those states, there could be a split of electoral votes among candidates through the state's system for proportional allocation of votes. For example, Maine has four electoral votes and two congressional districts. It awards one electoral vote per congressional district and two by the state-wide, "at-large" vote. It is possible for Candidate A to win the first district and receive one electoral vote, Candidate B to win the second district and receive one electoral vote, and Candidate C, who finished a close second in both the first and second districts, to win the two at-large electoral votes. Although this is a possible scenario, it has not actually occurred in recent elections.
Can citizens in U.S. territories vote for president?
No, the Electoral College system does not provide for residents of U.S. territories, such as Puerto Rico, Guam, the U.S. Virgin Islands and American Samoa to vote for president. Unless citizens in U.S. territories have official residency (domicile) in a U.S. state or the District of Columbia (and vote by absentee ballot or travel to their state to vote), they cannot vote in the presidential election. Note that prior to the adoption of the 23rd Amendment, D.C. residents could not vote in the presidential election.
The political parties may authorize voters in primary elections in territories to select delegates to represent them at the political party conventions. But that process does not affect the Electoral College system.
What would happen if two candidates tied in a state's popular vote, or there was a dispute as to the winner?
A tie is a statistically remote possibility even in smaller states. But if a state's popular vote were to come out as a tie between candidates, state law would govern as to what procedure would be followed in breaking the tie. A tie would not be known of until late November or early December, after a recount and after the secretary of state had certified the election results. Federal law would allow a state to hold a run-off election.
A very close finish could also result in a run-off election or legal action to decide the winner. Under federal law (3 U.S.C. section 5), state law governs on this issue, and would be conclusive in determining the selection of Electors. The law provides that if states have laws to determine controversies or contests as to the selection of Electors, those determinations must be completed six days prior to the day the Electors meet.
FREQUENTLY ASKED QUESTIONS ON ELECTIONS AND VOTING IN FLORIDA
What percentage comprises a majority win in a primary?
50 percent plus 1.
How many voting machines must be provided to each precinct?
One voting machine shall be provided for each 400 electors in the county, except that in any county in which 25 percent or more of the registered electors are 60 years of age or older, the supervisor of elections must provide at least one machine for each 350 registered electors.
Where does a candidate, elector or taxpayer file if he wants to contest the election returns?
With the Clerk of the Circuit Court; must be filed within 10 days of certification of results or within 5 days after canvassing board certifies results following a protest.
Where does a candidate or elector file a protest challenging the election returns as
erroneous?
With the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 5 days after midnight of the date the election is held, whichever occurs later.
FLORIDA'S PRESIDENTIAL ELECTORS 2000
On September 1, 2000, each political party that is registered in Florida certified to the Division of Elections the names of their presidential and vice presidential candidates. Along with this certification, each party submitted the names and addresses of 25 electors. Each state is entitled to a number of electors equal to the number of members of Congress and Senators from the state. These electors that are nominated by the party take an oath to vote for the candidate on whose behalf they are nominated. In Florida, the presidential and vice presidential candidate receiving the most votes will be entitled to have his or her electors certified as members of the Electoral College. The Electoral College will meet in each state capital on December 18, 2000 to vote for president and vice president. These votes will then be certified to the president of the Senate who will officiate at the counting in Washington, D.C. on January 3, 2001.
LEGAL ASPECTS AND POSSIBLE NEXT STEPS
* The recount was triggered by the state of Florida, which requires this procedure when less than one-half of 1
percent of the vote separates the candidates.
* Florida's mandatory vote recount is being supervised by the Election Canvassing Commission, which is
responsible for certifying the results of any election for federal or statewide office. The commission is made
up of the governor (Jeb Bush), state secretary of state (Katherine Harris), and the state director of the
Division of Elections (Clay Roberts). (Governor Jeb Bush, George W. Bush's brother, has stepped aside and
will not be certifying election results.)
* Election results will not be certified until overseas ballots are counted. Overseas ballots must be postmarked
by November 7 and received by November 17.
* Private citizens who have voted in the Florida elections and believe that their constitutional rights ("one man,
one vote") have been violated, may file lawsuits in federal district court. Also, if there is an allegation of a
violation of the Voting Rights Act, a lawsuit can also be filed in federal district court.
* Candidates or private citizens who have voted in the Florida elections alleging voting irregularities, or that the
"will of the people" was subverted, may file lawsuits in Florida state court.