In 2016, former President Donald Trump lost the popular vote, but won the presidency. The same phenomenon took place less than two decades earlier, in 2000, as well as three times during the 1800s.
That’s because, in the United States, we select our president and vice president indirectly via the Electoral College. The process is much more complicated than you might expect (and maybe more complicated than it should be), opening the post-election certification process up to vulnerabilities. In today’s Explainer, we outline how the president becomes the president.
What is the Electoral College?
The Electoral College is a process, not a place; this process includes the selection of electors, meeting of electors and the counting of electoral votes in Congress. When the founding fathers wrote the U.S. Constitution, these members of the political elite were concerned about uneducated masses swaying the results, but at that time, there was no other country that directly elected their chief executive. At the 1787 Constitutional Convention, a portion of the delegates believed that Congress should elect the president and vice president and another stubborn faction argued that a national popular vote was necessary. The Electoral College, outlined in Article II of the U.S. Constitution, with later updates in the 12th and 23rd Amendments, was a compromise they reached.
As part of this deal, the number of electors or electoral votes allocated to each state is equal to the number of senators (two for each state) plus the number of that state’s representatives (based on population size). Washington, D.C. gets three electors despite having no representation in the U.S Senate.
This adds up to 538 electoral votes in total; a presidential candidate must receive at least 270 votes to win. With the exception of Maine and Nebraska, the other 48 states and Washington, D.C. use a “winner-take-all” system where the candidate who receives the plurality, or most, of the state’s popular vote, even if by the smallest of margins, wins all the electoral votes. Maine and Nebraska, on the other hand, divide their electoral votes where the winner of the statewide vote receives two electoral votes and the remaining electoral votes are divided based on the relevant winner in each congressional district. For example, Nebraska has five electoral votes and in 2020, four of those votes went to Donald Trump (two for winning the overall statewide vote and two for winning two of the state’s three congressional districts) and one vote went to Joe Biden (for winning the state’s Omaha-based congressional district).
Who are the electors and how are they chosen?
Before Election Day, state legislatures have the authority to determine the “manner” in which electors are chosen. The Constitution doesn’t say much about who these electors are, but does ban anyone who holds an elected or appointed federal position from being selected. Consequently, states have outlined their own processes and expectations for appointing electors. Typically, the state Democratic or Republican parties choose state lawmakers, activists or personalities with strong ties to that party.
Here’s an example: By September 2020, the Massachusetts Democratic and Republican parties, as well as the Libertarian and Green parties, had each selected their respective electors — 11 individuals for each party, reflective of the Bay State’s 11 electoral votes. After the presidential election in November when President Joe Biden won 65% of the statewide vote, only the 11 Democratic party electors were appointed to be the state’s electors because the Democratic candidate received more votes. To reiterate, when you vote to select a presidential candidate of your choice, you are technically casting a vote to determine which party’s slate of electors will represent your state.
But, can electors cast a vote for a different candidate than the one who won the popular vote in their state? It’s not only exceedingly rare, but 32 states have laws that remove or penalize “faithless electors.” In 2020, the U.S. Supreme Court ruled that these types of laws are constitutional.
What happens between Election Day and the presidential inauguration?
The presidential election isn’t over when a candidate reaches that “270 to win” threshold, declared the winner by your news station of choice. Here’s the timeline that quietly unfolds in the background before Inauguration Day:
- Count, canvass and certify. While the administration of who counts and canvasses vote totals varies by state, each state must first certify its election results, and a state’s slate of electors are expected to reflect those results. The governor will then sign a certificate of ascertainment to establish which presidential candidate’s electors will meet in the upcoming steps.
- Early December: “safe harbor deadline.” States are expected to then complete any post-election challenges, such as recounts or audits, six days before the electors meet. The election results certified by states are considered “conclusive” once this date passes, meaning they cannot be changed. The “safe harbor deadline” was created by the Electoral Count Act of 1887 (ECA) and was a central issue in the infamous U.S. Supreme Court case Bush v. Gore (2000).
- Mid-December: Electors meet and cast their votes for president. The meeting of electors takes place in respective states in mid-December, or to be exact, the first Monday after the second Wednesday in December after Election Day. These electors officially cast their votes and send several more certificates of ascertainment and certificates of votes to a handful of federal governing bodies.
- Jan. 6: Congress meets to count electoral votes. This date may have a familiar ring to it after the most recent presidential election, but it’s actually a routine event that is usually more ceremonial than anything. On the Jan. 6 after a presidential election, Congress meets in a joint session to count the electoral votes sent by the state electors. The vice president presides over this process and announces the results. Members of Congress can raise objections that votes were not “regularly given” or an elector was not “lawfully certified.” If at least one senator and one representative object in writing, the joint session is suspended while the two chambers meet separately for a maximum of two hours of debate. Then, both chambers vote to accept or reject the objection. (We have seen objections in the past — after the 2000, 2004 and 2016 elections, but what took place after 2020 was unprecedented in scale and against the backdrop of a violent insurrection with the same intent.)
- Jan. 20: Presidential inauguration. The president-elect and vice president-elect take the oath of office.
What’s wrong with the Electoral College?
Despite functioning for several hundred years, the Electoral College process is rife with gaps and ambiguities that bad actors can try to exploit; a new bill aimed at reforming the 19th century ECA was recently introduced in the Senate.
Additionally, there are very legitimate concerns as to whether the Electoral College is a fair or democratic system. The skew of the U.S. Senate, which allocates two senators per state regardless of population size, translates into the same amount of electoral votes and gives more weight to states with smaller populations. A vote in Wyoming is four times more impactful than a vote in California. And, in any solid red or blue state, the millions of voters who don’t support the dominant party in that state have their votes effectively discarded.
Race and slavery also deeply influenced the creation of the Electoral College itself — since one-third of the South’s population was enslaved and barred from voting, the South would lose out under a popular vote system. The Electoral College allowed states to utilize the previously-established three-fifths compromise to gain political power from the very populations they oppressed. Law professor Wilfred Codrington III persuasively argues that this “winner-takes-all” system continues to disempower Black voters today.
Attempting to find a better alternative, 15 states and Washington D.C., accounting for 196 electoral votes, have signed onto an interstate compact to ensure that the winner of the national popular vote becomes president. According to polling, 55% of Americans support switching to a popular vote system, with only 43% in favor of keeping the Electoral College. Until that happens, this convoluted, indirect process to seat the country’s highest executive remains in place.