Electing the President

The process of electing the president is one of the most poorly understood in American politics, though the mechanics are relatively simple.  The process consists of two phases: the nomination phase and the general election. 

The single most significant feature of  these phases is that they are both representative processes.  This means that at no time do ordinary voters cast ballots for a presidential candidate directly -- instead voters cast their ballots for people who are politically committed to vote for that candidate at the appointed time.

The nomination phase consists of a series of state-by-state Democratic and Republican party primaries and caucuses.  The nomination phase culminates with the parties' national conventions.  The most important function of the convention delegates is to formally nominate the parties' presidential and vice-presidential candidates.  The primaries and caucuses are the means by which the parties select delegates to their respective conventions.

It is very difficult to generalize about this phase of the process because it varies significantly from state-to-state in any given presidential election year and from one presidential election year to the next.  The primaries and caucuses are governed by the laws in each state.  Additionally, the rules of the Democratic and Republican parties differ. 

In the final analysis, however, whether the voter is aware of it or not, he or she is actually casting a ballot for delegates who "say" they support the candidate.  While some critics maintain that the potential exists for the delegates to disregard the outcome of the primary or caucus vote, the fact that, over the last 8 election cylces the parties' nominees have been apparent long before the delegates convene, much less cast their votes at the conventions, suggests that the primary/caucus votes do effectually determine the parties' nominees.

Once the candidates have been formally nominated by their parties' conventions, the general election campaign begins.  The campaign runs until Election Day, the second Tuesday in November.  In the general election, ordinary voters across the country stream into the voting booths to cast their ballots for their preferred presidential/vice-presidential tickets.  However, voters in each state are actually casting their ballots for a slate of electors who technically elect the president and vice-president. The electors meet in their repsective state capitols in December to cast their votes.

All but two states, Maine and Nebraska, award their electoral votes according to the unit rule.  The unit rule is the practice of awarding all of a state's electoral votes to the presidential/vice-presidential ticket who win a plurality of a state's popular vote. 

The number of electoral votes allotted to each state is equal to the number of representatives the state has in the United States House of Representatives plus 2 (the number of senators each state has in the U.S. Senate).  Click here to see the number of electoral votes allotted to each state.

The United States Constitution requires that a candidate must win a majority of the 538 electoral votes to be elected president.  The candidates have, therefore, organized and run their campaigns in an effort to secure 270 electoral votes.  Click here to see how the electoral vote race is shaping up leading up to Election Day.

 The 2000 Candidates

Elizabeth Dole, Republican

Gary Bauer, Republican

Link to the Bush site.

Alan Keyes, Republican

Ralph Nader, Green Party

Thomas Jefferson, pictured here, was not a delegate to the 1787 Philadelphia Convention.
 

See Article II, section 1 of the Constitution and the 12th Amendment for provisions related to the Electoral College.  Click on the picture above.
 

Thomas Jefferson
 

Aaron Burr

Intent of the Constitution's Framers

The framers of the United States Constitution intended the Electoral College to be a body of the elite and wise leaders from the various states who would deliberate on the choice for the office of the president and select the best person for the job.  Most of the men at the Philadelphia Convention in 1787 agreed that the election of the president should not be done by popular vote.  Indeed, the Constitution does not even provide for a popular vote for president.

Under the provisions of the 1787 Constitution, the candidate who receives a majority of the electoral vote becomes president and the candidate with the second highest vote total becomes vice-president.  Should no candidate receive a majority of the vote, then the election of the president is determined by the House of Representatives with each state delegation having one vote.  Each state delegation in the House would determine among themselves how to cast their state's vote.  The election of the vice-president would be determined by the Senate.

Despite their vision, however, the Electoral College never really functioned as they had intended.  In the first two instances, 1789 and 1793, there was no need for the electors to deliberate.  The choice was obvious to all: George Washington was the man for the job.  However, when Washington announced that he would not accept a third term as president, the election of the president was opened up to the political process.  Already, two major political parties were emerging in American politics, the Federalists and the Democratic-Republicans.

In 1787, the framers of the Constitution failed to anticipate the emergence of a party system.  By the election of 1800, however, the process of selecting electors in the states had become captured by the parties.  This meant that the electors were in a poor position to deliberate on the choice for president.  Indeed, the electors cast their ballots on the basis of partisanship.

A related, but more immediately serious issue emerged as a result of the election of 1800.  For the first time, the Democratic-Republicans had nominated presidential and vice-presidential candidates to run as a ticket -- Thomas Jefferson and Aaron Burr respectively.  When the electors met in their state capitols to cast their ballots, they did not distinguish between votes for president and those for vice-president.  Thus, the Electoral College vote resulted in a tie -- between Jefferson and his running mate, Burr!  Because no candidate received a majority of electoral votes, the election of the president was thrown into the House of  Representatives.  Jefferson emerged as the winner, but only after 35 ballots!

This "flaw" in the Electoral College was corrected by the Twelfth Amendment to the Constitution.  This amendment provides that the electors cast separate ballots for president and vice-president.  But the legacy of the 1800 election was the fact that the original intent of the framers -- that the electors deliberate on the choice for president -- would never be realized.
 

The Popular Vote v the Electoral Vote - editorial 

(11/5/2000) -- Wm Feagin, Jr.

It has never failed to happen in the 16 years I have been teaching students about presidential elections in introductory American government courses.  Someone always wants to know, "What would happen if one candidate wins the popular vote and the other wins the electoral vote?"

I always give the same "matter-of-fact" answer: "practically, it's not going to happen."  Almost as predictably as the first question, a second question usually follows: "But it could, couldn't it?"  "No," I reply, "not as a practical matter." 

Then, another student invariably presses the issue.  "Hypothetically, it could happen, right?"  "We can argue hypotheticals until our faces turn blue," I say, "but, practically, it is not going to happen."

What is it about hypothetical scenarios that people seem to relish?  "OK, let me concede, in the world of hypotheticals, one candidate could win the popular vote and the other win the electoral vote."  At this point, a wave of concern usually courses over the faces of many in the classroom.

I wonder what people who feel this debate is relevant think will happen if the hypothetical scenario plays out. "So....?" a student wonders aloud.  My response: "so what?   Would the process somehow be circumvented?

"No!  The constitutional process would have been observed.  No one would have been cheated.  The Constitution does not provide for the direct popular election of the president.  It doesn't even provide for a popular vote.  So,  if somehow the hypothetical situation actually happened, however remote the actual probability may be, everyone can relax.  The whole system will not collapse.  The new president could assume his office and the nation could rest comfortably in the knowledge that the White House was not taken in a coupe d'etat.  The president would have been elected as the Constitution prescribes.  In the American political system where the rule of  law reigns supreme, constitutionalism will have triumphed."

I'm not sure this response has ever really satisfied any of my students.  The truth of the matter is I understand the concern expressed by those who worry about the possibility of the electoral and popular votes going to different candidates.  Would such a result not undermine what little confidence Americans have left in the political process? 

I doubt it.  It would likely lead to proposed constitutional amendments being introduced in Congress to abolish the Electoral College.  Average Americans could rest comfortably in the knowledge that their representatives in Congress would be working to guarantee that the will of the people would never again be thwarted.  Ah!  Once again, adherence to constitutional process would have been observed.

The more learned among my students frequently wonder why I would assert that the scenario can only play out in the hypothetical world.  "But it has happened, hasn't it?"

"Indeed, it has," I reply undaunted.  "In 1824, the House of Representatives elected John Quincy Adams president after no candidate in a four-way race received a majority of the electoral vote, even though Andrew Jackson had won the most popular votes.  Then, in 1876, Samuel Tilden won 51% of the popular vote, but he and Rutherford B. Hayes each won 50% of the electoral vote.  In that election, the returns from four states were disputed and Congress, in joint session, declared Hayes the winner.  Additionally, in 1888, Grover Cleveland won the popular vote, but Benjamin Harrison won the electoral vote.  Notice that the country did not collapse as a result of any of these episodes."

"Well, if it has happened three times, why can't it happen again?"  A reasonable question, isn't it?

"There is a very important difference in the way that the Electoral College works today that precludes the likelihood that one candidate will win the popular vote and the other win the electoral vote," I assure them.  "In the modern era, electoral votes are cast on the basis of the unit rule.  The unit rule means that the candidate who wins a plurality of the popular vote in a state receives all of the states electoral votes.  In the interest of precision, I should add that every state except Nebraska and Maine cast their electoral votes according to the unit rule.

"The effect of the unit rule is to magnify the popular vote.  That is, the candidate who wins the popular vote wins the electoral vote by an exaggerated margin.  For example, in 1996, Bill Clinton received about 49% of the popular vote but won 375 electoral votes (70%).  In 1992, Clinton received only 43% of the popular vote, but 68% of the electoral vote.  In 1988, George Bush won 53% of the popular vote, 79% of the electoral vote.  Ronald Reagan won 51% and 58% of the popular vote in 1980 and 1984 respectively, and 91% and 97% of the electoral vote totals in those years. And so on.

"This a significant benefit of the Electoral College -- provided the votes are cast according to the unit rule.  Relatively small margins of victory in the popular vote can be translated into mandates to govern with electoral vote landslides.

"Consider the likely result if the states awarded electoral votes in proportion to the popular vote.  Of the last ten presidential elections, four would have been decided by the House of Representatives, since in the 1960, 1968, 1992, and 1996 elections no candidate received a majority of the popular vote.

"The unit rule also diminishes the impact of third party challenges.  In 1992, when Ross Perot polled 19% of the popular vote nationally, he was not able to tally even a single electoral vote.  Three cheers for the Electoral College!  Imagine presidential elections without the Electoral College and its elegant unit rule.  Serious minor party challengers could siphon significant popular votes from the two major party candidates.  With four or five or six serious minor party candidates drawing as little as 8-10% of the vote apiece and the two major party candidates splitting the rest of the vote, the eventual winner might receive as little as 25% of the popular vote total.  What a devastating prospect for governing for the next 4 years!  I pity the president who would attempt to move his agenda through Congress having assumed the presidency with such a paltry mandate."

The fears of my students seem to be allayed by these arguments.  But one student attempts to subvert the reluctant class' acceptance I'd worked so hard to cultivate.  "Do the electors have to cast their ballots in accordance with the plurality popular vote in their states?"  Like an angry mob in Springfield just itching to burn down the town's library where books containing dangerous ideas are housed, a new murmur of discontent with the Electoral College begins to rumble through the classroom.

"Yeah, can't they cast their votes for anyone they want to?" shouts one student.  "What's stopping them?" yells another.  "Get' em!" cries an unidentified voice in the crowd.

Like little Lisa Simpson, I stand my ground  "People!  I beseech you all.  Remain calm.  Let me explain why your fears are unfounded.

"First, let's determine who these electors are.  How are they chosen to be electors?  In each state, each political party having a presidential/vice-presidential ticket on the state's ballot, selects a slate of electors equal to the number of electors the state is allotted in the Electoral College.  For example, in California, the Democratic Party selects a slate of 54 electors, the Republican Party selects 54 electors, as do the Green and Reform parties, and any other party with a ticket on the ballot.  In New York, each party running candidates selects 33 electors and in Texas, the parties each select a slate of  32 electors, and so on.  Please refer to the table indicating the number of electors allotted to each state," I instruct them.

"In the event that the Democratic Party's ticket wins a plurality of the popular vote in California, the 54 electors selected by the California Democratic Party will go to Sacramento in December to cast their ballots.  Should the Republican ticket carry the popular vote in the state, the 54 electors selected by the California Republican Party will cast their ballots.  This process is followed in the other states, except, of course, for Maine and Nebraska which must, as nature dictates after all, be Maine and Nebraska. 

"To illustrate how unfounded this fear of a "faithless elector" is, consider that over the last ten presidential elections going back to 1960, only five electors have cast their ballots in a fashion inconsistent with the popular vote results in their states.  In 1988, Margaret Leach, a Democratic elector in West Virginia cast her vote for Lloyd Bentsen instead of Michael Dukakis.  In 1976, Mike Padden, a Republican elector in Washington state, voted for former California governor Ronald Reagan instead of Gerald Ford.  In 1972, Roger MacBride, a Republican elector in Virginia voted for John Hospers, the Libertarian Party candidate instead of Richard Nixon.  In 1968, Lloyd Bailey voted for independent candidate George Wallace instead of Richard Nixon.  And in 1960, Henry Irwin, a Republican elector in Oklahoma voted for Virginia Senator Harry F. Byrd, a Democrat.

"How many total electoral votes were cast over these ten presidential elections?  Well, there are 538 electors in each election....times 10 elections....that's 5,380 electoral votes.  In other words, out of 5,380 electoral votes cast only 5 were cast in a manner that was inconsistent with the popular vote.  That's less than 1% of all electoral votes!

"Folks, the 'faithless elector' is another one of those concerns for people who like to argue hypotheticals.  It is not a serious practical problem.

"Why, class, are electors so unlikely to cast their ballots in a manner that's inconsistent with the popular vote in this year's election?"

"Because Richard Nixon is not running," quips a young woman in the front row.

"True enough!" I concede.  "But seriously class...

"What do you suppose are the primary qualification for being chosen by your state political party to be an elector?  Class time is running out, so I'll tell you.  Loyalty.  Trustworthiness. Dependability.  These people are long time party activists; they want to vote for their party's ticket!

"Furthermore, the votes of the electors are not cast by secret ballot.  We know who these people are.  Surely, if an elector would cast his or her ballot for the opposition party's ticket or some other presidential and vice-presidential candidates, their political futures would be ruined.  They could never be trusted again.  Believe it or not, like many processes in American politics, the election of the president hinges ultimately on trust.  I believe we can trust the electors to faithfully discharge their duties.

"One last thing, before we go, class.  The race between George W. Bush and Al Gore stands to be the closest in a very long time.  Should the popular vote and the elctoral vote be won by the same candidate, remember who told you that the doom-sayers were way off base.  Ummm, if I'm wrong, forget I said anything."

[historical facts from Congressional Quarterly's Guide to the Presidency, Michael Nelson editor, 1989 and Vital Statistics on the Presidency, by Lyn Ragsdale, 1992.  Congressional Quarterly, Inc: Washington, D.C.]
 

days until Election Day!

Which one of these two will be happy enough to dance after the votes are counted?

 

When Hypothetical Scenarios Become Reality

(11/10/2000) -- Wm. Feagin, Jr.

I've always believed that one should admit when he gets it wrong.  So let me admit it.  I was wrong!  And, even now, three days after the votes have been cast, I still find the whole thing surreal.  And, to be precise, until the mess in Florida is sorted out, I am not technically wrong.  If Al Gore prevails in the recount, my bold assertion that one candidate could not win the popular vote and the other win the electoral vote, would be substantiated.

Historically, most recounts have confirmed the candidate who was initially decalred the winner to, in fact, be the winner.  But even if Al Gore is determined to have won, I should still concede that I was wrong.  I said that the scenario of one candidate winning the popular vote and another winning the electoral vote was too remote to consider seriously.

Tuesday's election, however, demonstrates that the possibility should have been seriously considered.  Upon reflection, I have determined that what I really meant to say was that the probability of such an outcome is so remote that I feel sure that it will not happen.  This is the assertion that I should have made.

"It HAS happened!" you say.  "Obviously, the probability is much larger than you think!"

If this is your view, then I say you are the sort of person who would probably lose a lot of money on a gambling trip to Las Vegas.  As a colleague of mine has pointed out, you have committed the gambler's fallacy.  You commit the gambler's fallacy if you assume that the occurrence of an event affects the probability of that event occurring again in the future.

Consider the probability of drawing an "ace" out of a fair (properly randomized  or shuffled) deck of cards.  There are 52 cards in a deck, 4 of those cards are "aces," so the probability is 4/52, or about 8%.  If you draw an "ace" then place it back in the deck, what is the probability of drawing an "ace" the second time?  The answer is: 4/52.  So the fact that the event (in this case, drawing an "ace") happened once does not change the probability that it will happen another time.

If the weather forcast says that there is a 10% chance of rain today, you might think it is not going to rain.  You go to work without your umbrella, it rains, and you get wet.  You curse the weatherman and tell your friend that his forecast was wrong.  His forecast was not wrong!  The probability was 10%.  It was a very unlikely event that occurred despite the probability against it.

Sometimes, we do draw "aces" out of a deck of cards!  But, I'd bet against it every time.

So let me correct my prediction, the probability of one candidate winning the popular vote and the other winning the electoral vote in any given presidential election is so remote, I predict it will not happen again.

Ummmm.....You'd better take your umbrella with you when you go to vote, just in case. 

---

A Proposal to End the Controversy! (11/10/2000)

At some point we are all going to have to admit that, in such a close race with so many disputed ballots and alleged voting irregularities, we can NEVER really be certain who won the popular vote in Florida. 

But surely, we can all agree that the last place the presidential election should be settled is the courts, federal or state.  Ideally, we would like the electoral votes from Florida to reflect the popular vote in the state, but the ordinary means of determining the will of the voters has failed us.

In some ways it is predictable that lawsuits have already been filed.  We have become a very litigious society.  The courts have become our first recourse for settling our disagreements.  Our political culture places a premium on legalism.  But there is a better way to resolve the current impasse, thereby avoiding what could potentially become an endless morass of lawsuits -- as claim will undoubtedly lead to counter-claim. 

If the will of the voters in Florida cannot be determined by counts and recounts of the second, third, and fourth varieties, how should the will of the voters be determined?  If not by the courts, then by whom?  When confronted with such problems, I have always believed that the remedy lies in first principles. 

My answer is that this is an issue that is better suited to legislative remedy than to judicial remedy.  In other words, if the will of the voters cannot be determined through the ballot box, let us accept the second best alternative: let the people's elected representatives decide, that is, the Florida Legislature.

This proposal is entirely consistent with the provisions of the United States Constitution.  Article II, section 1 reads:
 

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

In effect, this provision means that the Florida state legislature may appoint its 25 electors on whatever basis its members deem fair and reasonable.  The Constitution does not require that the electoral votes be allocated on the basis of the popular vote.  In fact, the Constitution does not provide for a popular vote for president at all.

The Florida Legislature could resolve this whole controversy once and for ever by passing special legislation, for the purposes of this election only, to determine how the state will cast its 25 electoral votes.  If the state legislature is not currently in session, the Governor of  Florida will have to exercise some leadership and call a special session.

Now, honest people may have real disagreements over how the Legislature ought to award the electoral votes.  Should the Legislature select 25 electors that are committed to George W. Bush?  Should they select 25 electors that are committed to Al Gore?  Given the close popular vote statewide, should they divide the state's electoral votes equally between Bush and Gore?  Or should they, like Maine and Nebraska, award the electoral votes based on the outcome of the popular vote in each of the state's 23 congressional districts, with the remaining two being awarded based on the statewide vote, (if the statewide vote is too close to call, split the remaining two electoral votes between the candidates)?

The point is that the electoral votes should be determined by the people's representatives, not by the courts and not by interpretations of intent from hanging chads.  And, under this proposal, the people of the State of Florida could then hold their legislators accountable!

So let the candidates stop all the legal wrangling.  Let the manual recounts, that cannot possibly satisfy everyone, come to an end.  This controversy should not involve legal manuevers.  Neither the Democrats nor the Republicans can capture the moral high ground.  There is no moral high ground to capture; it is a political battle, plain and simple.  It should be recognized as such.  And it should be resolved in a political arena: the Florida Legislature.

Ultimately, this solution would be consistent with Article II, section 1 of the U.S. Constitution.  And, furthermore, it would preserve the principles embraced by the Constitution's framers in establishing the Electoral College.  The framers established the institution as a compromise between direct popular election of the president and congressional election of the president. 

They rejected having Congress elect the president because they agreed that congressional election would make the president dependent upon the will of Congress.  Whereas separation of powers is a first principle of the Constitution, this method of electing the president was not feasible.  Direct popular election of the president posed a number of problems, but the most serious one was that it would mean that the president would be elected by a national (numerical) majority.  Majorities have the tendency of suppressing minority viewpoints.  So to preserve the other first principle of the Constitution, federalism, the framers created an Electoral College that would mirror the federal structure of the Congress.

Congress serves the federal principle because its members are elected from local districts and the states.  In other words, members of Congress represent local and state interests. Out of the competition among local and state interests represented in Congress, the national interest presumably emerges.

Now, while the Constitution prohibits members of Congress from serving as electors (remember separation of powers), the Electoral College is designed to replicate the federal principle represented in Congress.  The Electoral College's job is not to legislate, but  to select the president.  But it emodies the principle that state and regional differences matter.  And it is this argument, among others, by the way, that leads me to defend retaining the Electoral College, with all due respect to Senator-elect Clinton and others who say this election illustrates why it should be abolished.  On the contrary, it illustrates exactly why it should not be abolished.

So Florida, please lead the nation back to its constitutional roots.  Perhaps, something good can come out of this whole mess.  Once the 2000 presidential election is decided, we can turn our attention to preventing this from happneing again.  I propose that, in future presidential elections, electors not be chosen by the political parties, but by the state legislatures.  Legislatures in each state could award electors on the basis of a unit rule if they so schoose, or proportionally according the the popular vote in each congressional district. In any case, the electors should be bound by state law to cast their votes as intended by the voters.

Though the framers of the Constitution believed that the electors should be a deliberative institution with the electors exercising their best judgment, electors in the modern era are not in a position to deliberate.  The political realities prevent the institution from functioning as the framers intended.  The will of the people should determine the selection of the president.  The Electoral College should be reatined as the means of gauging the will of the people.  When it comes to electing the president, the electors should act as delegates of the voters.