Americans don’t elect their president and vice president on November 3. Rather, they elect 538 members of the Electoral College, who in turn elect the president and vice president on December 14.
Why are elections held this way? Who are the electors, and what happens if they can’t agree on a winner?
Here is everything you need to know about the Electoral College.
Why the Electoral College exists
Alexander Hamilton, America’s first Treasury secretary, wrote in Federalist No. 68 that the Founding Fathers decided the presidential election “should be made by men most capable of analyzing the qualities adapted to the station.” (Women didn’t get the vote until 1920.)
A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
In eighteenth-century America, when news was slow and traveling around the country took weeks, voters could not be expected to learn enough about multiple national candidates (the Founders did not anticipate a two-party system) to make an informed decision.
In addition, the Founders feared that a direct presidential election might stoke division and even inspire violence:
The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes.
It hasn’t quite worked out the way they planned.
Who elects the electors?
The Constitution leaves it up to the states.
State legislatures used to appoint the electors. All fifty now hold popular elections, with 48 awarding all their electors to the statewide winner. Maine and Nebraska award two electors each to the statewide winner and two and three, respectively, to the winners in their congressional districts.
Can state legislatures overturn the popular vote?
Yes. The Supreme Court reaffirmed that in Bush v. Gore in 2000:
The State … can take back the power to appoint electors.
Hence the fear that in a closely contested election, Republican state legislatures in swing states, like Pennsylvania, might appoint electors for Donald Trump even if he didn’t win.
Who are the electors?
Prior to the election, candidates file a list of candidates in each state equal to the electoral vote of that state. These are generally party loyalists, like activists, donors, local and state party politicians and trade unionists, but they cannot hold federal office.
If Joe Biden wins New York this year, Hillary Clinton will be one of his electors in the state.
Each state has as many electors as federal representatives and senators.
Wyoming, the least populous state, has two senators and one congresswoman, Liz Cheney, hence three electors. California, the most populous state, has two senators and 53 congressmen and -women, hence 55 electors.
In addition, the District of Columbia, which has no senators, has three electors.
Do electors have to vote for their candidate?
There are “faithless” electors. In 2016, five of Clinton’s electors and two of Trump’s voted for someone else. It didn’t change the outcome.
Some states have made this a crime. Some impose a fine. Fourteen states remove faithless electors and replace them with someone else.
If that sounds like it contradicts the Founders’ whole argument for the Electoral College (that electors can make up their own minds), that’s because it does.
When are the electors chosen?
In 1887, Congress passed the Electoral Count Act which created a “safe harbor” deadline for states to appoint their electors. This year, the safe harbor will fall on December 8.
States file so-called certificates of ascertainment, confirming their presidential election results and the slates of electors representing each candidate. These must be signed by the state governor and are sent to Congress.
What if states miss the safe-harbor deadline?
If election results are still in dispute by December 8, states could either appoint no electors or two slates of electors.
For example, if the official result puts Biden ahead in Pennsylvania but Republicans allege fraud, the Democratic governor, Tom Wolf, could certify one slate of electors (for Biden) and the Republican-controlled state legislature could certify another (for Trump).
Congress would need to decide which slate of electors to accept, however, Democrats control the House of Representatives and Republicans the Senate. If they don’t agree, the Electoral Count Act leaves the final decision to the state governor — but that would seem to contradict the Constitution, which gives state legislatures the power to name electors.
Such a dispute would probably end up in the Supreme Court.
What if no candidate receives an Electoral College majority?
Then the House elects the president and the Senate the vice president. This is called a contingent election, which last happened in 1836, when faithless electors in Virginia refused to vote for Martin Van Buren’s vice-presidential nominee, Richard Mentor Johnson, who was subsequently elected by the Senate.
There’s a twist: the House would vote by delegation, meaning every state gets one vote. Republicans are in the minority in the House, but they are in the majority in 26 House delegations. Democrats control only 22. The remaining two are tied.
The balance might change after the election, and the Twentieth Amendment stipulates that a contingent election must be held by the new, rather than the outgoing, Congress. It’s unclear what would happen to delegations that are tied.
What if there’s no majority in the House or Senate either?
The Presidential Succession Act of 1947 provides that the speaker of the House, currently Nancy Pelosi, becomes acting president in the absence of a president and vice president. But that law was written for different circumstances: in case both the president and vice president had died or were removed from office.
Politicians can’t serve in both the executive and legislature branch, so Pelosi would need to resign from Congress in order to be sworn in as president.