Dimensions: 6'' x 9'' 118 pages AEI Press  (Washington) Publication Date: August 2004 Paperback ISBN: 0844742023 Price: $ 15.00 Add to Cart   Examination Copies

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September 2004
After the People Vote: A Guide to the Electoral College (Third Edition)
Edited by John C. Fortier

After the People Vote (AEI Press, September 2004) is a handbook on how the electoral college works in both ordinary and extraordinary scenarios. This third edition includes essays for and against the electoral college and accounts of the disputed election of 2000 and of earlier controversial elections.

John C. Fortier is a research fellow at AEI and executive director of the Continuity of Government Commission.

Although the millions of Americans who vote in the November election rightly think they are deciding who will be president, under the U.S. Constitution, only 538 people who are presidential electors are entitled to vote directly for president. Each state has a number of electors equivalent to its number of senators and representatives in Congress. In almost all states, the presidential candidate winning the popular vote in a state will receive the votes of the entire slate of electors.

There is much that goes on after the people vote in November and before a president takes office. The first section of After the People Vote is a handbook explaining the workings of the U.S. Constitution, federal and state statutes, rules, procedures, and customs that govern the final selection of the president. How are electors appointed? Who resolves disputed appointments? For whom do the electors vote? How are the electoral votes counted? What if no one has a majority? What if no one has been chosen by election day? What if a major party candidate dies or resigns?

In ordinary circumstances, there are slates of electors pledged to the presidential candidates. After the results of the popular election are confirmed, the electors pledged to the winner are certified as the official electors of the state. Each state's electors cast their votes, usually in the state capitol, in mid-December. Congress counts the votes on January 6, and a new president takes office at noon on January 20.

Even within this ordinary set of circumstances, there are variations among state practices. The selection of candidates for electors may be determined by a variety of procedures put in place by state political parties. In certain states, the names of presidential elector candidates appear on the ballot, while in others they do not. Some states bind their electors' votes, while others do not.

And there are a number of extraordinary scenarios. The popular vote winner might not also win a majority of the votes of the electoral college, as occurred in 2000. State recounts might extend past the time that the electors are required to meet and vote, as the Florida recount nearly did in 2000. Congress, in counting the votes on January 6, is guided by statutes that define how the votes of electors might be challenged, but there are cases where the law is not perfectly clear, and Congress itself might have to makes its own decision on the validity of the votes of electors. If no one receives a majority of the votes of the electors, then the House would pick among presidential candidates to select a president, with each state's delegation receiving one vote, and the Senate would choose a vice president.

If a candidate were to die soon after election day, his or her political party might find a replacement candidate, and the presidential electors might vote for the replacement when the electors meet in December. If the vacancy occurs after Congress counts the electoral votes on January 6, the vice-presidential candidate would take over as president, or if there were no vice president, the speaker of the House would become president under the Presidential Succession Act.

Disputed Elections

The second section of After the People Vote addresses disputed elections in our history, including the 2000 election. Norman J. Ornstein recalls the elections of 1800, 1824, and 1876. The 1800 election resulted in a tie between Thomas Jefferson and Aaron Burr that was resolved after a contentious session of Congress in favor of Jefferson. The election revealed a flaw in the original design in the electoral college, that each elector would vote for two candidates, but would not specify which was to be president and which to be vice president. Jefferson and Burr ran on the same ticket and bested Federalists John Adams and Charles Pinckney. But Jefferson and Burr ended up with the same number of electoral votes, and the decision on who would be president was left to the Congress. The deadlock was finally broken with the help of Federalist Alexander Hamilton, whose relationship with Jefferson was bitter, but who viewed Burr as a demagogue. Hamilton wrote, "If there be a man in the world I ought to hate, it is Jefferson. With Burr I have always been personally well. But the public good must be paramount to every private consideration." The Jefferson-Burr controversy led to the ratification of the Twelfth Amendment, which requires that electors specify their votes for president and vice president. Four years after the controversy, Burr killed Hamilton in a duel.

The 1824 election was contested by four candidates: John Quincy Adams, Andrew Jackson, William Crawford, and Henry Clay. Jackson received a plurality of the popular and the electoral votes, but with four candidates splitting the electoral vote, the decision was thrown to the House of Representatives. The Twelfth Amendment allows Congress to select among the top three electoral vote getters, eliminating Clay. Clay was Speaker of the House, and might have prevailed had he been among the top three candidates. Clay threw his support behind Adams, and he was later named secretary of state in the Adams administration. This led Jackson to characterize the election as a "corrupt bargain," and this issue propelled Jackson to the presidency in 1828.

The 1876 election was perhaps the most controversial in our history. In the aftermath of the election, it appeared that Samuel Tilden had beaten Rutherford B. Hayes. He received a majority in the popular vote, and he was one vote short of a majority in the electoral college, leading Hayes 184 to 165 with twenty electoral votes outstanding. The twenty outstanding votes were from South Carolina, Florida, Louisiana, and one elector from Oregon. There was significant bribery, fraud, and ballot box stuffing on both sides. In these states, two sets of election returns were sent to Washington with competing slates of presidential electors. There were no procedures for dealing with contested returns from a state, and Congress was divided with a Republican Senate and Democratic House. The two houses compromised by appointing a fifteen-member commission, with seven Democrats and seven Republicans, and an independent Supreme Court justice as the final vote. Justice David Davis was suddenly elected to the Senate from Illinois, became ineligible to serve on the commission, and was replaced by a Republican, Justice Joseph Bradley. The commission split eight to seven on all of its findings and ultimately rewarded all twenty disputed electoral votes to Hayes, giving him a 185 to 184 victory. The final decision was made on March 2, only two days before inauguration day. The controversy led to the passage of an electoral count act and changes in the line of presidential succession.

John Fortier's essay examines the 2000 election. Before the election, pundits had considered the possibility that George W. Bush might win the popular vote but lose in the electoral college, yet they could not have predicted a thirty-six-day dispute that turned on a few hundred votes in Florida. Early in the evening of election night, the networks called the state of Florida for Gore, which appeared to make him the likely winner of the election. Around midnight, the networks backed off those predictions, labeling Florida "too close to call." After 2:00 a.m., Fox News called the state of Florida for Bush, and with results from other states already in, it appeared to give the presidency to Bush. Gore called Bush to concede, and drove to a site to give a concession speech in front of his supporters. But on the drive, the numbers began to change, and Gore called Bush back and retracted the concession. The totals showed a Bush lead of less than half of one percent of the vote, enough to trigger a machine recount. After this recount, the margin shrunk by more than half.

The next thirty-six days saw a series of challenges and court decisions and introduced Americans to obscure terms such as the "hanging chad." Florida's secretary of state, Katherine Harris, ultimately certified the election for Bush in late November, after the Florida Court had extended the time for recounting. But this decision was subject to another court challenge, and the Florida Supreme Court ordered recounts to go forth across the state. Finally, on December 12, the U.S. Supreme Court stepped in, deciding the case of Bush v. Gore and ordering the recounts to stop, effectively ending the controversy and giving the presidency to George W. Bush.

The essential holding of the case of Bush v. Gore was that the recounts ordered by the Florida Supreme Court should be halted because they were being conducted in an unequal way that violated the due process clause of the Fourteenth Amendment of the Constitution. And there was no time to fix the flawed recounting procedures because the state had intended that it finalize the selection of its electors by six days before the electoral college met, a "safe harbor" that would make it very difficult for Congress to challenge these electors when it counted the votes in January.

What if the recount had continued past December 12? Florida would have lost valuable protection of its electors against a challenge in Congress. Congress might have counted the votes, but it might not have.

Could there have been competing slates of electors? Conceivably, a court might have ordered the appointment of a slate of electors for Al Gore if later recounts had put him ahead in the popular vote in Florida. In that case, Congress might have been presented with two sets of electors' votes, as it had been in 1876. A federal statute, the Electoral Count Act, clarifies how competing slates should be handled, but it is not clear how to deal with two slates of electors sent by the executive of the state. In this case, the dispute might have continued up to inauguration day.

What if no candidate had been selected by inauguration day? If there is no president selected by inauguration day, the vice president would serve as acting president. If there were no vice president or president, then the Speaker of the House would act as president.

For and Against the Electoral College

Walter Berns and Martin Diamond write in favor of the electoral college. Akhil and Vikram Amar write against it.

Berns argues that the electoral college has served us well throughout our history. Its virtue is seen in its success in choosing good presidents. Berns argues that the main argument against the college is that it violates the principle that the popular vote winner should be come president. It is very rare that the winner of a majority in the electoral college does not also win the popular vote. Before 2000, the last time we had such a scenario was 1888.

The American idea of democracy, Berns argues, cannot be expressed in the simple, but insidious formula of the greatest good for the greatest number. America does not rely on simply a popular majority but a constitutional majority. It relies on the principle of the popular vote, but candidates must win the popular vote in each state. The electoral college also requires candidates to win votes in several regions of the country to secure a majority of electors. This forces candidates to consider the concerns of groups who may be in the minority of the country but important in a region. Simple majoritarianism is curbed by constitutionalism, which is intended to secure the rights of all, as well as reflect the popular will.

Akhil and Vikram Amar argue against the electoral college by pointing to flaws in the original and more modern arguments made in support of it. The original electoral college system was designed to allow each state's electors to cast two votes for president, one for a local politician and another for a figure of national stature. As the country was just beginning and communication among far flung states was difficult, the framers worried about a dearth of truly national figures, and the electoral college was designed to remedy that problem. That concern is irrelevant today.

More troubling is the consideration of slavery in the shaping of the electoral college. It was designed so that each state would have a number of electors proportional to its population, including three-fifths of the slaves, but slave states prevented slaves from voting. In effect, therefore, the electoral college magnified the votes of white southerners.

The Amars also take up ten modern arguments for the electoral college, including the arguments that it promotes federalism and reinforces the two-party system. As for federalism, the Amars note that Lincoln was able to win the presidency without winning a single electoral vote in the South; in fact, he did not even appear on the ballot in most of the South. A direct popular election would require that candidates win votes in almost all regions. As for the two-party-system argument, the states are able to elect governors with a direct popular vote, and the two-party system is strong in the states. And concerns about the two-party system could be addressed by a runoff or instant runoff version of a direct popular vote.

Martin Diamond's essay addresses some of the Amars' concerns. The framers adopted the electoral college not to be undemocratic, but "rather as a nationalizing substitute for the state legislatures." It was the result of a number of compromises among the delegates at the constitutional convention, especially between those who favored a greater role for states and the nationalizers. It was devised to recognize that the states had a wide variety of suffrage practices, which the electoral college "would take care of . . . until, as Madison hoped and expected, slavery would be eliminated and suffrage discrepancies would gradually disappear."

Diamond also indicates how the electoral college does support direct popular election, not at the national level, but in the states. We already have a "one man, one vote" system-but in the states. Elections are as freely and democratically contested as elections can be-but in the states. Democracy thus is not the question regarding the electoral college; federalism is. Should our presidential elections remain in part federally democratic, or should we make them completely nationally democratic? It is hard to think of a worse time than the present, when so much already tends toward excessive centralization, to strike an unnecessary blow at the federal quality of our political order. The president and vice president are our two central officers. But they are not our two national officers; rather, they are our two partly federal, partly national officers. Why should we wish to change them into our two wholly national officers?

Appendixes

The appendixes provide the reader with the constitutional and statutory provisions, as well as other rules and customs related to the workings of the electoral college. In addition, tables indicate how each state selects its electors, how many electoral votes each state casts, the names of all of the "faithless electors," and the popular vote and electoral vote totals for candidates in every presidential election since 1789.

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