Many news networks called the 2020 presidential election in favor of former Vice President Joe Biden on November 7 after they had determined that enough votes were counted in Pennsylvania that its vote in the electoral college would almost certainly be going to Vice President Biden.
Our country’s system of using an electoral college to determine our presidential elections runs contrary to how many people think the United States’ elections work. In the last couple of decades in particular, the electoral college has caused some frustration as there were two instances in which the elected president won the count for electoral college votes but lost the popular vote.
The system works by giving states electoral votes based on their congressional delegation size. Then, whichever candidate is able to gain the votes of the most electors wins the race. California, for instance, has 53 members of the House of Representatives, a number determined based on the population of the state. It also has two senators, the same number of senators awarded equally among states. This means that California is given 55 electoral votes, because it has 55 total congressional delegates. California has the most votes of any state. States that are low in population, such as Montana, North Dakota, Delaware, and Alaska, are all only given one seat in the House of Representatives, so they have three electoral votes based on their total number of congressional delegates. The District of Columbia is also given three delegates, though D.C. is not represented in Congress.
The system for choosing electors varies by state, but most are nominated at party conventions and given to the state’s designated election official. Each individual voter’s ballot actually goes to determining what electors are chosen, not which candidates win. In the majority of states, whichever party receives the most votes has its electors go on to vote for the candidates. Maine and Nebraska are the two exceptions, as each have two delegates for whomever wins the overall count in the state, and one to the winner of each congressional district in the state.
In total, there are 538 potential electoral votes in the country. This means that a president must secure at least 270 votes to be elected. In the event that two candidates tie or no one person receives the majority of the votes, the House of Representatives must determine the winner of the presidency and the Senate determines the winner of the vice presidency. In the House election for presidency, each state is only given a single vote.
It should be noted that the votes cast by electors are not really at the elector’s discretion. The electors are expected to cast their votes for the candidate that received the majority of the votes in the state, and if they select a different candidate, they are deemed “faithless electors.” Although the electors are technically allowed to do this under the Constitution, the Supreme Court held in Chiafalo v. Washington, a case from July of this year, that states are allowed to require that their electors follow that state’s popular vote. In states with such laws, faithless electors are punished or replaced.
Although popular elections are held in November, the electoral college casts its ballots in December, and these votes are the ones later counted at a joint session of Congress. This is the ultimate determination of who becomes president and is inaugurated in the following month.
This system thus allows the popular vote to influence the election, as it determines the number of electors in each state, but it does not ensure that the popular vote corresponds with the eventually elected candidate. There have been four instances of particularly close races in the country’s history where the president won the electoral college but not the popular vote. President Rutherford B. Hayes was the first in 1876 after 20 electoral votes were disputed and ultimately awarded to him by the Federal Electoral Commission that Congress established to handle this situation. President Benjamin Harrison won the presidency in 1888 with 233 electoral votes to Grover Cleveland’s 168 despite the fact that he lost the popular vote by 90,000. President George Bush beat Al Gore for the presidency with 271 to 266 electoral votes in 2000 despite losing the popular vote by 500,000. Most recently, President Donald Trump beat Hillary Clinton in 2016 with 304 electoral votes to Clinton’s 227 even though she had almost 3 million more popular votes. With only four instances of this occurring out of 58 presidential elections, it is certainly an uncommon occurrence. It is clear, however, that in close races in particular, it is possible for the president to be chosen by a majority of electors and not a majority of voters.
Some past presidents have voted in favor of a Constitutional amendment to abolish the electoral college, including President Gerald Ford and President George H.W. Bush, though both cast their votes when they were members of the House of Representatives in 1969. In 1968, a Gallup survey also showed that 80 percent of people favored eliminating the Electoral College in favor of a national popular vote system. Some states, such as Michigan, Ohio, Pennsylvania, and more, have also considered moving to an electoral system like Maine and Nebraska’s in which the district awards its electoral votes. This removes the winner-take-all effect.
According to National Archives reports, there have been more than 700 proposals introduced to Congress in the last 200 years attempting to change to eliminate the Electoral College. None have been successful. According to the American Bar Association, this is partly because the electoral college is rooted in the Constitution, and eliminating it requires an amendment to the Constitution. Article II, Section I of the Constitution states that the president is chosen by electors of each state that are awarded based on the state’s representation in Congress. The majority of states and D.C. also have Constitutions requiring that they provide presidential electors. Some recent politicians, including Senator Elizabeth Warren, expressed that they would be willing to support a Constitutional Amendment to eliminate the electoral college. Other politicians have called such efforts impractical or unnecessary.
Regardless, for such an amendment to be passed, a bill proposing the amendment must pass both houses of the legislature by a two-thirds majority each, and then be ratified by three-fourths of states. This intentionally creates a high bar for passing amendments, and as such, it is unlikely that the electoral college will be eliminated by such means in the next several years.
With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.