When registered voters choose President Donald Trump or former Vice President Joe Biden or another candidate on Nov. 3, what they’re really doing is telling nominated electors, “I want you to vote for this person for president.”
Whichever candidate wins a state’s popular vote, it’s their party’s slate of electors who get to then vote for president. The candidate who receives a majority of electoral votes — 270 out of 538 — wins the presidency. The varied suite of state laws governing how presidential electors are nominated and cast votes is available from the National Association of Secretaries of State.
Winner take all (electors)
h Pederson / Unsplash)Thirty-two states require that their electoral votes go to the candidate who wins the statewide popular vote. Electors who snub the popular preference face fines or criminal charges in a few states. Electors typically vote for president at their state capitol roughly a month after Election Day. Individual secretary of state offices can answer questions about whether voting by presidential electors is open to the public.
Maine and Nebraska are exceptions to the winner-take-all-electors rule. Those states have what’s called a “district system.” Two electoral votes go to the statewide popular vote winner. Then there’s one electoral vote for each congressional district, appointed based on the vote winner within the district. There are three congressional districts in Nebraska and two in Maine. In 2016, three of Maine’s electoral votes went to Hillary Clinton and one electoral vote from its 2nd congressional district went to Trump.
The U.S. has what’s called “decentralized” voting. That means while there are federal agencies that do things like enforce campaign finance laws, there’s no federal agency or bureau that runs presidential elections. That job is left to individual states.
The national census taken every 10 years determines each state’s number of representatives in the House of Representatives — as well as each state’s number of electors who vote for president. The number of presidential electors in a state equals the state’s total number of representatives and senators. The District of Columbia gets three electors.
Processes vary for nominating electors
The Constitution doesn’t say how state legislatures should nominate electors, and each state determines how it does so. In modern presidential elections, political parties in each state nominate electors through a variety of formal and informal processes during the spring and summer of an election year. Electors are usually active and loyal party members, so they’re expected to vote along party lines.
The way it works oftentimes is that the major party organizations within a state — Republican and Democratic — nominate a slate of electors prior to Election Day and send those names to the secretary of state’s office. Some states require that electors be eligible voters, or registered to vote, or that they take an oath to honor their state’s popular vote results.
Members of Congress cannot serve as presidential electors, but they choose the president and vice president if no ticket reaches the 270 threshold.
Electors are not free agents: A longstanding tradition
(Internet Archive)Historical practice dictates that presidential electors vote for president according to their state’s popular vote results. “Faithless electors” — those who vote contrary to the popular vote count — have never decided the presidency. Five times the Electoral College winner and eventual president lost the national popular vote: 1824, 1876, 1888, 2000 and 2016. Electors in Michigan and Utah who vote contrary to their state’s popular vote results automatically lose their position and are replaced. Faithless electors in New Mexico risk felony criminal charges.
The U.S. Supreme Court affirmed in July that states have the right to put in place enforcement measures to ensure electors vote for their party’s nominee, if she or he wins the popular vote. Chiafalo v. Washington centered on three electors in Washington who violated their pledges to support Hillary Clinton in 2016, voting instead for former Secretary of State Colin Powell. The state fined each elector $1,000.
Justice Elena Kagan wrote the opinion of the court, offering that the fines reflected “a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.”
To recap: When voters make their choice for president on Election Day, they’re really voting for the slate of electors put forward by the political party their candidate belongs to. States don’t typically put nominated electors’ names on presidential ballots — but those names are a matter of public record.
Know your electors
In most presidential election years, the presidential candidate who wins the popular vote in a state is virtually guaranteed to get that state’s electoral votes.
In 2000, Florida’s then-25 electoral votes weren’t certain to go to former Texas Gov. George W. Bush until mid-December. In a ruling that legal scholars would hotly criticize — and analyze — for years, the Supreme Court halted a recount in the state, reasoning it would have been impossible to continue the recount while meeting a key electoral deadline required by federal law. (More on electoral deadlines below.) The ruling allowed to stand the Florida secretary of state’s certification of the election in favor of Bush. Florida’s 25 Republican presidential electors were the ones elected following the court’s ruling. They then voted for Bush, who prevailed in winning the presidency with a total of 271 electoral votes.
Who electors are becomes relevant during an election season like the current one, in which the president refuses to agree to a peaceful transfer of power if he loses, and during which at least one of his campaign advisers appears to be gaming scenarios to replace electors in politically friendly states — after the Nov. 3 election and contrary to the will of the voters — according to reporting from The Atlantic’s Barton Gellman.
In The Atlantic piece, “The Election That Could Break America,” there’s a specific focus on Pennsylvania, where “three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign,” Gellman writes.
