Voters will not elect the President when they show up to the polls on November 8. The President will not be elected until the new Congress counts the votes of the Electoral College, people whose names would probably be unfamiliar to most of us, on January 6, 2017.
The historical reasons for this odd state of affairs go back to 1787, to the Constitutional Convention. The delegates at the Convention wanted to construct a stronger central government, but they were torn between the desire to give the new Federal Government popular legitimacy and their fears that the people might be subject to unwise temporary enthusiasms, a “mobocracy,” as they called it. The delegates also faced a mechanical problem: the delegates from the larger states wanted the states represented by populations, while the smaller states wanted to retain the equality of representation from the Articles of Confederation under which the nation was still being governed in 1787.
The compromise between the larger and smaller states gave us the Electoral College. This compromise was based in another compromise: the bicameral legislature known as Congress. In the House of Representatives, each state had a number of members in proportion to its population, while in the Senate, each state was represented by two members.
When it came to electing the President, the Constitutional Convention repeated that compromise. It provided that each state would have the power to select a number of electors equal to the number of Representatives they had, thus representing the populace, if indirectly. Each state would also have two more electors for the Senators each had, thus representing state sovereignty. The Convention imagined these electors would be wise men who would vote for the most capable individuals for President and Vice President, rather than being swayed by the man of the hour. Thus the election of the President would not be due to some passing whim of the mob, while still ultimately arising from the people.
Over time, several changes altered the nature of the Electoral College, as the group of electors was called. The rise of national political parties as early as the 1790s meant that the electors ceased to be free agents, and instead became pledged to their parties’ nominees. The state legislatures delegated their power of choosing the electors to the voting citizens, but to maximize their power in the Electoral College, most awarded their electors on a “winner take all” basis to whomever won the popular vote in that state. That franchise originally belonged only to free white men. Constitutional amendments extended the franchise to the former slaves, to women, and to citizens of the District of Columbia, as well as dropping the voting age to 18.
Despite its persistence in our Constitutional framework, the system based on the Electoral College has not been without some difficulties. The original voting procedure, in which the votes for President and Vice President were not distinct, led to the election of a President and Vice President from opposing parties in 1796, and to a tied election in 1800. The Twelfth Amendment, ratified in 1804, fixed that problem by separating the voting for the two offices. In 1824, 1876, 1888, and 2000, the candidate who won the most votes nevertheless lost in the Electoral College. And in three of those elections, 1888 excepted, other bodies (the House of Representatives, a special commission, and the Supreme Court) were needed to settle the election.
So how does this work in 2016? When you enter the voting booth, your ballot may list the names of the Presidential and Vice Presidential candidates, but what you are really voting for is your state’s slate of electors pledged to vote for those candidates. Each state has as many electors as it has Representatives and Senators, hence the electors are roughly proportionate to population, but the system favors smaller states thanks to their equal representation in the Senate. When each state’s governor or designated subordinate executive officer certifies the results of the election, they also certify the slate of electors that will vote for the candidates who won a plurality in that state. (Maine and Nebraska do not follow the “winner take all” rule, but between them command only 10 electoral votes out of 538.) On December 19, 2016, those electors will meet in their respective states to cast their ballots, which again are certified by each state, and forwarded to Washington, D.C. On January 6, 2017, the Congress just elected will convene, open and count the Electoral College ballots, and declare the winner. It should all be straightforward.
Yet inherent in the design of the Electoral College are three possible problems that could affect the outcome. First, because smaller states are overrepresented in the Electoral College and all but two states award them on a “winner take all” basis, it is possible for a candidate to lose the popular vote and yet win in the Electoral College. This has happened most recently in 2000. While such a result is legal, nevertheless it reduces the democratic legitimacy of the presidency. President George W. Bush, the winner of the 2000 election, faced considerable criticism of his legitimacy until the terrorist attacks of September 11, 2001 brought the country together.
Second, the Constitutional Convention imagined the electors as wise men, free agents, not the pledged party delegates they have become. They placed no restriction on which eligible candidate an elector might vote for. So there is no Federal law preventing a candidate from changing his or her mind and voting for someone other than the candidate to which s/he pledged. This switching has happened in elections as early as 1796 and as recently as 2004, though so far it has never changed the outcome of an election. While there are laws in several states binding electors to their candidates, these have never been enforced or tested in court. Conceivably, if a majority of electors agreed to change their votes the same way, we could wake up in January to find they had agreed on a candidate no one had ever considered.
Last, if no candidate wins a majority in this election, either because a third party candidate wins enough electoral votes or because of a tie (if both major candidates won 268 of the 538 votes), the presidential election would be thrown into the House of Representatives, while the Vice Presidential election would be thrown into the Senate. Thanks to another one of those compromises between representing the people and representing the states, members of the House would vote, not as individuals, but by state, with each state getting only one vote. This procedure led to political skullduggery when it last happened in 1824. It would probably be no prettier if it happened now. It might well be that the House would be controlled by Republicans and the Senate by the Democrats. Would members vote for the candidates who won the most popular votes, or for their own party’s candidates? We might end up with a President and Vice President from different parties, a situation that has not happened since 1796.
Just as the Electoral College was a compromise between different requirements and political positions in 1787, so today it is an awkward compromise between the design of 1787 and the idea of a popular vote that is used for most other elected offices. Eliminating the Electoral College would require passing a Constitutional amendment, itself a complex process. It would take a crisis to drive such an effort. Just having the winner of the popular vote lose in the Electoral College is apparently not enough; the calls for reform after that happened in 2000 quickly died out. It will probably require the people to lose faith in the Electoral College entirely before a serious effort will be made to eliminate it.