Every presidential election year revives questions about our system of voting through the Electoral College. Teachers tell us that students find this the most perplexing feature of our constitutional system. Below, we offer an explanation of why the Electoral College exists, how it works, and what happens when the electoral count in any state is contested.
What is the Electoral College?
Americans do not vote directly for the President of the United States. Instead, they vote for presidential electors, who then vote for the president and vice-president. This process is called the Electoral College.
Why does the Electoral College exist?
The Electoral College process respects the federal character of the United States, giving certain roles to the states and others to the federal government. Much of the discussion during the Constitutional Convention revolved around measures needed to balance the powers of the state and national governments. The Electoral College process was proposed and accepted as one of these measures.
How does the process work?
The process occurs in three stages: the selection of the presidential electors; the vote of the electors for the President and Vice-President; and the counting of the electoral votes.
Step 1: Choosing Presidential Electors
Each state has the same number of electors as the combined number of its Representatives in the House of Representatives and its two Senators. The number of representatives each state has depends on its population. Delaware, for example, with a population of a little over a million people has three electoral votes because it has one Representative in Congress and two Senators. California, which has a population of almost forty million, has fifty-four electoral votes because it has fifty two Representatives and two Senators. According to the twenty-third Amendment to the Constitution, the District of Columbia, the national capital, has three electoral votes, even though it has neither a voting member of the House of Representatives, nor Senators.
To win the electoral College vote, a candidate must receive 270 votes, which is a majority of the 538 available votes.
In each state, the political parties who have candidates running for president and vice-president choose electors at some point before the general election, the election at which the people of each state vote for president. The process for choosing electors varies according to state laws because the U.S. Constitution, Article II, section 1, specifies that each state will appoint its electors “in such Manner as the Legislature” of the state “may direct.” (In addition to these state laws, a number of constitutional provisions and federal laws govern aspects of Electoral College procedures.) The electors chosen are called a slate of electors. When the people in each state vote for a presidential candidate, they are voting for his or her slate of electors.
Step 2: The Vote of the Presidential Electors
Following the general election, the Governor of each state (and the mayor of the District of Columbia) signs what is called a Certificate of Ascertainment. The Certificate must be ready at least six days before the electors meet. The certificate lists the slates of electors for each candidate, the votes each slate received, and specifies the slate chosen as the state’s electors for that election according to which candidate received the most votes. Here is an example of a Certificate of Ascertainment.
Article II, section 1 of the U.S. Constitution states that Congress determines the day on which the electors cast their votes. Where they cast them is up to the state legislatures. The votes are cast on the first Tuesday after the second Wednesday in December after the general election, usually in the state capital. Neither the U.S. Constitution nor any federal law requires that the electors cast their votes according to the popular vote in their state. The vote of the electors is recorded on a document called the Certificate of Vote. The Certificate of Vote contains a list for the President and another for the Vice President of all the electors who voted for each. All the electors sign the Certificate of Vote, which is then attached to an original of the state’s Certificate of Ascertainment. Both documents are then sealed up and sent to the National Archive.
In 37 states, the state official in charge of overseeing the state electoral process is the Secretary of State. The other states except one have a Board of Elections or a Commissioner of Elections who does this. In one state, Utah, the Lieutenant Governor is the chief election official.
Step 3: Counting the Electoral Votes
Electoral votes are counted at a Joint Session of Congress (the House and Senate meeting together) that takes place on January 6. This day is determined by federal law. The Vice President of the United States, acting in his or her role as the President of the Senate, presides over the counting and announces who has been elected president and vice-president.
Key Dates for the 2024 Presidential Election
November 5, 2024 Election Day
By December 11, 2024 Presidential Electors Appointed – Certificate of Ascertainment
December 17, 2024 Electors vote – Certificate of Vote
December 25, 2024 Electoral votes delivered to the President of the Senate and the Federal Archivist no later than the fourth Wednesday in December
January 6, 2025 Congress counts the vote
January 20, 2025 Inauguration Day
What Happens in Contested Elections?
Disputes over who won an election may occur in the states or at the Joint Session of Congress when the electoral vote count takes place. Some states have laws that require a recount if the election is particularly close or if, under certain circumstances, a candidate requests one. Candidates may go to state or federal court depending on whether they think the election process violated state or federal law or state or federal constitutional provisions. In 2000, the dispute over the election reached the Supreme Court. In 2020, Arizona’s Certificate of Ascertainment included information about court cases over the 2020 election that were decided or still pending.
When the Joint Session of Congress meets to count the electoral votes and declare who the next President and Vice-President will be, any objections to the electoral votes of the states must be made by at least one-fifth of the members of the House and one-fifth of the Senators.
If an objection has that level of support, the House and Senate meet separately to consider the objections. According to federal law, Representatives and Senators may consider only two objections to the electoral vote: the electors were not certified legally by a Certificate of Ascertainment or the vote of an elector was irregular in some way. An objection is sustained only if both the House and the Senate vote to do so.
If objections to the electoral vote leaves no Presidential candidate with at least 270 electoral votes, or if this is the result of the election, then according to the 12th Amendment to the Constitution, the House of Representatives decides the Presidential election. The House chooses from among the top three vote getters in the Electoral College by majority vote. Each state has one vote. The District of Columbia would not have a vote because it does not have a voting member in the House. If no Vice-Presidential candidate wins at least 270 electoral votes, then according to the 12th Amendment the Senate elects the Vice President. The Senate chooses between the two top vote getters by majority vote. Each Senator has a vote.
Check out this related blog: A Conversation with John Dinan, Editor of our core document collection, Federalism.
